COURT OF APPEALS

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

IN THE MATTER OF
  G.M., a juvenile,

                            Appellant.

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No. 08-02-00459-CV

Appeal from the

65th District Court

of El Paso County, Texas

(TC# 99,00843)

MEMORANDUM OPINION

G.M., a juvenile, appeals the trial
court=s judgment committing him to the
Texas Youth Commission.  He argues that
the evidence is neither legally nor factually sufficient to
support the trial court=s
disposition, urging that a lesser appropriate sanction was available, and
the only reason G.M. was not placed in that program was his undocumented
immigration status.  Finding there was
sufficient evidence to support the trial court=s disposition ruling, we affirm.
Facts

In August 2002, while on probation
for delinquent conduct consisting of driving while intoxicated, G.M. committed
criminal trespass.  After a disposition
hearing held on October 3, 2002, G.M. was committed to the Texas Youth
Commission.  In its judgment of
commitment, the trial court found that the disposition was justified because
reasonable efforts had been made to prevent the child from being removed from his
home, in that before the disposition currently at issue, the child had been
placed on probation, he had been referred to Aliviane,
intensive supervised probation under the Project Spotlight program, an
electronic monitoring program called Project Libertad,
the Life Skills program, that in addition to these programs, he had been
referred to psychological counseling, that he was not attending school and he
needed to enroll and continue his education, and he did not have legal status
in the U.S.
Background
G.M., at the time of the disposition
hearing, was fifteen years old; he is the youngest of three children.  G.M., his siblings, and his mother are
undocumented aliens.   His father is a
resident alien.  It is possible that he
could gain lawful status, but his parents have not pursued it.  G.M. and his nineteen-year-old girlfriend
have two children.  They all live in his parents= home in El Paso, Texas.

G.M. attended school approximately
two weeks during 2001.  At the time of
his disposition hearing, he was enrolled in high school, but had not attended
any classes there.  While in the juvenile
detention facility, he was required to attend the Delta Academy, and had done
quite well.  His probation officer believed
that he needed to be forced to attend school.
While in Project Libertad, he missed his
counseling sessions on several occasions, which caused his termination from
that program.
In April 2002, a petition to
adjudicate G.M. delinquent based on domestic violence, driving while
intoxicated, possession of marijuana, and criminal trespass was filed.   He pleaded true to the driving while
intoxicated count, and the other allegations were
dismissed.  G.M. was placed on probation
in the Project Spotlight program.  While
in this program, he twice tested positive for marijuana.  G.M. failed to appear for counseling
appointments.  He was terminated from
that program and then referred to the Millennium program (the nature of which
is not discussed in this record).

 The juvenile probation department recommended
G.M. be committed to the Texas Youth Commission after considering
alternatives.  Originally, he was
considered for placement in a secure facility, Challenge Boot Camp.  His probation officer testified:  A[t]here was no finding, physically or
mentally, to keep him from entering the Challenge Boot Camp; however, given
that he is a Mexican national and he is undocumented, he was declined for the
program.@
The probation officer testified that although the boot camp staff felt
they could not take G.M. because of his immigration status, nevertheless the
judge could order him admitted to Challenge Boot Camp, and the officer had
known instances where a Mexican national had attended the boot camp.  The probation officer testified that G.M.
needed to attend school, which he was not doing in the community, that he
needed behavior modification, substance abuse treatment, vocational training,
and citizenship classes.  G.M.=s vocational and citizenship needs could not be met at boot
camp, but such programs are available at TYC.
TYC would provide counseling services for G.M., his parents, his
girlfriend, and his children.  The
probation officer testified that he believed sending G.M. to TYC was in his
best interest, and the best interest of the community.
G.M. was also considered for return
to his home environment but it was decided that G.M.=s needs could not be met there
because of a lack of supervision in the home, and G.M. is not easily
supervised.  In the probation officer=s opinion, G.M.=s parents minimize his problems and
blame others for his delinquent conduct and truancy.  He also has a history of running away.  When at his parents= home, he stays home, or meets
negative peers at places he should not be.
G.M., on the other hand, states that he does not go to school because he
needs to take care of his children.  G.M.
and his girlfriend are supported by G.M.=s parents.  His probation officer testified that G.M. had
probably exhausted community resources, and he had not seen improvement in his
behavior during the period of intensive supervision.

G.M. began his relationship with the
Texas justice system at the age of ten in 1998.
That year he was apprehended for disorderly conduct and assault.  In 1999, G.M. pleaded true to delinquent
conduct in the form of assault, and agreed to pay restitution.  In 2000, G.M. entered a state program,
Project Libertad, which relied upon electronic
monitoring.  While in that program, he
violated his probation by committing criminal trespass and other offenses.  During this period, G.M. and his parents
participated in a state-sponsored parenting class.  In February 2000, G.M. tested positive for
marijuana, whereupon he entered the Aliviane Drug
Treatment program.
G.M=s mother disagreed with the
recommendation that he be sent to TYC.
She agreed to participate in the Challenge Boot Camp program if he were
sent there.  G.M.=s father, on the other hand, stated, Aif it is for his own good, then, it=s fine.@
G.M. himself did not agree with the recommendation.  He stated that if the judge ordered him to
Challenge Boot Camp, he would participate and follow the rules.

The court found that G.M. was
eligible for placement at TYC by virtue of an adjudication
for misdemeanor assault in June 1999; adjudication for driving while
intoxicated in May 2002; and adjudication for criminal trespass in September
2002.  The court found that G.M.=s need for rehabilitation, and the protection of himself and
the public all required that the probation department=s recommendation of commitment to TYC
be followed.  It also found that it was
in G.M.=s best interest to be placed outside
his home because his parents do not adequately supervise, control or discipline
him, nor does he lend himself to discipline, that reasonable efforts had been
made to keep him in his home and to make it possible for him to return home,
and that he was not attending school and needed to enroll in a continuous
education program.  The court also found
that there are no community-based intermediate sanctions available to
adequately address G.M.=s needs, that the gravity of the offense
and his prior record required his confinement in a secure facility, and that
G.M.=s needs and status justified a
deviation from the sanction guideline levels.
Sufficiency
of the evidence to support disposition
In two points of error, G.M.
challenges the legal and factual sufficiency of the evidence used to justify
his commitment to the Texas Youth Commission.
In particular he asserts that the community-based intermediate sanction
of Challenge Boot Camp was appropriate and was not available to him solely
because he was not a legal resident of the U.S.
Finding this was only one of several reasons for deviating from the
sanction guidelines, we affirm.
Standard of review
When challenging the factual and
legal sufficiency of evidence to support an offense, the appellate court
applies a reasonable doubt standard for the finding of delinquency in the light
of a criminal proceeding.  In re L.R., 67 S.W.3d 332, 338 (Tex. App.--El Paso 2001, no
pet.).  We do not disturb the
juvenile court=s disposition order in the absence of
abuse of discretion.  In
re M.A.C., 999 S.W.2d 442, 446 (Tex. App.--El Paso 1999, no pet.).

Juvenile courts are vested with broad
discretion in determination of suitable disposition of children involved in
delinquent conduct.  In
re C.J.H., 79 S.W.3d 698, 702 (Tex. App.--Fort Worth 2002, no pet.).  Abuse of discretion does not occur where
there is some evidence of substantive and procedural proof to support the trial
court ruling.  Id.  This is especially true in hearings which
involve disposition, and absent an abuse of discretion, the appellate court
will not disturb the juvenile court=s ruling.  See In re E.R.L, No. 08-02-00259-CV,
2003 WL 21290917, at *4 (Tex. App.--El Paso June 5, 2003, no pet. h.).  We review dispositions using a two-pronged
analysis:  (1) did the trial court have sufficient
information in order to exercise its discretion; and (2) did the trial court
commit error in its application.  Id.  We use traditional sufficiency of the
evidence standards to answer the first question, then
continue to determine whether the trial court=s decision was reasonable.  Id.; In re L.R.,
67 S.W.3d at 338; In re M.A.C., 999 S.W.2d at 446.  The question is whether the trial court acted
without reference to guiding rules or principles, not whether in the opinion of
the appellate court the facts present an appropriate case for the trial court=s action.  In re L.R., 67 S.W.3d at 338; In re
M.A.C., 999 S.W.2d at 446.  Our
review is in conformance to the Texas Family Code section 54.04(i) and the explicit considerations it commands.[1]  Tex. Fam. Code Ann. ' 54.04(i) (Vernon 2002); In
re L.R., 67 S.W.3d at 338; In re T.K.E., 5 S.W.3d 782, 784
(Tex. App.--San Antonio 1999, no pet.); In re M.A.C., 999 S.W.2d at 446.
Factual sufficiency
Factual sufficiency requires the
appellate court=s examination of all the evidence to determine Awhether the finding . . . is so
against the great weight and preponderance of the evidence as to be manifestly
unjust.@
In re L.R., 67 S.W.3d at 339.
In asserting factual insufficiency,
G.M. argues that, but for his undocumented alien status, he would have been
recommended for Challenge Boot Camp.  We
find no evidence that supports this assertion.
It is true that the boot camp program offers behavior modification,
substance abuse and educational programs, as does the TYC, and the boot camp is
in the community.  However, Challenge
Boot Camp does not offer citizenship classes, while TYC does offer such
classes, and G.M. would benefit from these.
The Texas Youth Commission offers vocational training which would allow
G.M. to gain skills necessary to provide for his two children; boot camp does
not offer vocational training.  Most
importantly, the TYC offers after-care services when G.M. returned to his home environment, which are not available in the boot camp
program.   The probation department
stated this after-care was Acritical@ to his rehabilitation.
Further, G.M. has had the opportunity to participate in many
community-based programs, and none have been successful in changing his
delinquent behavior.

G.M.=s case was staffed by the probation
department through its top officials:
the senior probation officer, senior officer, director of probation
services, and deputy chief probation officer.
All were in agreement with this course of action.  Even G.M.=s father acquiesced in the probation
department=s recommendation.  We find that the trial court had ample
evidence upon which to make the disposition, that the weight of the evidence
supports a finding that the Texas Youth Commission would best suit G.M, and the
great weight and preponderance of the evidence does not support G.M.=s assertion that, but for his alien status, his disposition
would not have been TYC.  Finally, we
find that the trial court did not err in applying the facts before it in a
reasonable manner.  G.M.=s first point of error is overruled.
Legal sufficiency

We find legal sufficiency if there is more than a scintilla of evidence
to support the finding and disregard all evidence and inferences to the
contrary.  In re
L.R., 67 S.W.3d at 339.  For
the reasons discussed in our analysis of G.M.=s first point of error, we find there
was legally sufficient evidence to support the trial court=s disposition.  We overrule Point of Error Two.
Conclusion
For the foregoing reasons, the
judgment of the trial court is affirmed.

SUSAN
LARSEN, Justice
August 14, 2003

Before Panel No. 1
Larsen, McClure, and Chew,
JJ.

[1]Tex. Fam. Code Ann.
' 54.04(i)
(Vernon 2002):
(i) If
the court places the child on probation outside the child=s home or commits the child to the
Texas Youth Commission, the court:
(1) shall include in its order its
determination that:
(A) it is in the child=s best interests to be placed outside
the child=s home;
(B) reasonable efforts
were made to prevent or eliminate the need for the child=s
removal from the home and to make it possible for the child to return to the
child=s home;
and
(C) the child, in the
child=s home,
cannot be provided the quality of care and level of support and supervision
that the child needs to meet the conditions of probation; and
(2) may approve an administrative
body to conduct permanency hearings pursuant to 42 U.S.C. Section 675 if
required during the placement or commitment of the child.


703 F.2d 559
Brumittv.United Auto., Aerospace, Agr. Implement Workers of America
80-1517
UNITED STATES COURT OF APPEALS Sixth Circuit
6/10/82

1
E.D.Mich.

AFFIRMED


Zurich Am. Ins. Co. v City of New York (2019 NY Slip Op 07640)

Zurich Am. Ins. Co. v City of New York

2019 NY Slip Op 07640

Decided on October 23, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 23, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

CHERYL E. CHAMBERS, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
COLLEEN D. DUFFY, JJ.

2017-08288
 (Index No. 520940/16)

[*1]Zurich American Insurance Company, etc., et al., respondents,
vCity of New York, appellant.

Georgia M. Pestana, Acting Corporation Counsel, New York, NY (Fay Ng and Jeremy W. Shweder of counsel), for appellant.
White and Williams, LLP, New York, NY (Christopher Konzelmann of counsel), for respondent Zurich American Insurance Company.
LeClair Ryan, P.C., New York, NY (Michael J. Case and Laurin H. Mills, pro hac vice, of counsel), for respondents Recall Corporation, Recall Holdings Ltd., Recall Total Information Management, and Citipostal, Inc.

DECISION & ORDER
In a consolidated action, inter alia, to recover for damage to property, the defendant appeals from an order of the Supreme Court, Kings County (Katherine Levine, J.), dated June 2, 2017. The order denied the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.
ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
Insofar as relevant to this appeal, the following facts are alleged by the plaintiffs in this consolidated action: On January 31, 2015, at approximately 4:36 a.m., the New York City Fire Department (hereinafter the FDNY) responded to a fire alarm at a warehouse operated by the plaintiff Recall Corporation. When they arrived, FDNY personnel observed a fire on storage shelves approximately 50 feet into the building. Upon concluding that the fire was being controlled by the building's sprinkler system, FDNY personnel wet down the debris, then turned off the main water valve that controlled the flow of water to the entire sprinkler system, rendering it inoperable. After certifying to warehouse personnel that the building was safe to re-enter, FDNY personnel left the premises. Within minutes, a warehouse employee observed an orange glow toward the center of the warehouse, and a second fire alarm was activated at 6:32 a.m. However, because the sprinkler system had been disabled by FDNY personnel, the fire spread quickly and destroyed the entire building and its contents.
In January 2016, Zurich American Insurance Company (hereinafter Zurich), as subrogee of its insureds, Recall Corporation and the plaintiffs Recall Holdings Ltd., Recall Total Information Management, and Citipostal, Inc. (hereinafter collectively the Recall plaintiffs), [*2]commenced an action against the defendant, the City of New York, seeking to recover the amounts it paid to the Recall plaintiffs under the terms of a certain insurance policy covering the warehouse. The Recall plaintiffs commenced a separate action against the defendant to recover for damage to property. The two actions were subsequently consolidated.
The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint in the consolidated action on the ground that the plaintiffs had not pleaded the existence of a special relationship giving rise to a duty of care under the public duty rule (see Valdez v City of New York, 18 NY3d 69, 75). The Supreme Court denied the motion, and the defendant appeals.
As a threshold matter, the Recall plaintiffs' contention that the defendant is not entitled to assert governmental function immunity as an affirmative defense is not properly before us, because the defendant has not moved to dismiss the complaint on that ground. Thus, we express no view on this issue, and decide only the narrow question before us, namely, whether the plaintiffs have pleaded a viable cause of action against the defendant to recover damages for negligence.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87-88; Santaiti v Town of Ramapo, 162 AD3d 921, 924-925). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19).
A municipality may not be held liable for the negligent performance of a governmental function, such as police and fire protection, absent a duty born of a special relationship between the injured plaintiff and the defendant municipality (see Applewhite v Accuhealth, Inc., 21 NY3d 420, 426; Valdez v City of New York, 18 NY3d at 75; McLean v City of New York, 12 NY3d 194, 199). A special relationship may arise in three situations: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of person; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when it assumes positive direction and control in the face of a known, blatant, and dangerous safety violation (see McLean v City of New York, 12 NY3d at 199).
Here, the plaintiffs' allegations that FDNY personnel, upon arriving at the scene and assuming control over the ongoing fire, shut off the main water supply valve to the warehouse's sprinkler systems, then certified to warehouse employees that it was safe to reenter the building when in fact the fire was still at risk of rekindling—which it did within minutes after FDNY personnel left the premises—are sufficient to establish a special relationship (see Trimble v City of Albany, 144 AD3d 1484; S.C. Freidfertig Bldrs. v Spano Plumbing & Heating, Inc., 173 AD2d 454). Therefore, we agree with the Supreme Court's determination denying the defendant's motion to dismiss the complaint.
In light of our determination, we need not reach the plaintiffs' remaining contention.
CHAMBERS, J.P., ROMAN, COHEN and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


38 Md. App. 716 (1977)
382 A.2d 596
ROLAND NEVILLE GODWIN
v.
STATE OF MARYLAND.
No. 200, September Term, 1977.
Court of Special Appeals of Maryland.
Decided November 14, 1977.
Opinion Modified February 28, 1978.
The cause was argued before MOYLAN, MENCHINE and LOWE, JJ.
Joseph A. DePaul and James E. Kenkel, with whom were William C. Brennan, Jr., and DePaul, Willoner & Kenkel, P.A. on the brief, for appellant.
Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George's County, Robert Bonsib and Michael Whalen, Assistant State's *718 Attorneys for Prince George's County, on the brief, for appellee.
MOYLAN, J., delivered the opinion of the Court.
This case grows out of a macabre series of cold-blooded executions reminiscent of the St. Valentine's Day Massacre. As one of those executioners, the appellant, Roland Neville Godwin, was convicted in the Circuit Court for Prince George's County by a jury, presided over by Judge Jacob S. Levin, of three counts of first-degree murder, four counts of kidnapping and four counts involving the unlawful use of a handgun in the commission of a felony. Upon this appeal, he raises seven contentions:
1) That an extrajudicial identification of him by a codefendant-turned-State's-witness was unconstitutionally received in evidence;
2) That a tainted in-court identification of him by the sole survivor of the executions was unconstitutionally received in evidence;
3) That a tainted extrajudicial photographic identification by a witness was unconstitutionally received in evidence;
4) That he was unduly restricted in his cross-examination of State's witnesses in terms of impeaching their credibility;
5) That the trial court erred when it failed to declare a mistrial because of allegedly improper argument by the State's Attorney;
6) That the trial court committed error when it failed to instruct the jury on the meaning of premeditation; and
7) That the kidnapping convictions should have merged into the felony-murder convictions.
Initially, we will briefly set the factual backdrop of the case. A codefendant and ultimate State's witness, Johnnie Mae Jones, was apparently the victim of a robbery. Instead of complaining to the authorities, she complained to her brother, codefendant Willie Lee Jones, Jr., and the two of them elected to take the law into their own hands. They were joined in this venture by their two ultimate codefendants, James Richard Person and the appellant.
*719 The four victims were Alvin Jones, Anthony Cunningham and David Dock, all three of whom were executed, and Ronald Swayne, who survived to testify. There were strong intimations in the evidence that the executioners as a group and the victims as a group were part of a narcotics-using culture and that there were some social acquaintanceships flowing between the two groups.
The executions occurred during the pre-dawn hours of October 24, 1975. Ronald Swayne left his home at between 8 and 9 p.m. on October 23 in his own car, a red Cougar. He drove to the residence of his friend (and one of the executed victims) Alvin Jones. He there picked up Jones and another of the ultimate victims, Anthony Cunningham. The threesome drove to an apartment building on C Street in southeast Washington. Swayne blew the horn of his automobile and two individuals came out of the apartment to join them. They were two of the ultimate killers, but danger signs had not as yet reared their heads. The two individuals were codefendant James Richard "Reds" Person, an acquaintance of Swayne, and the appellant, "a tall slim black man" whom Swayne had never seen before. Shortly thereafter, David Dock, the remaining ultimate victim, came out of the same apartment and joined "Reds" Person and the appellant in an orange Volkswagen. The orange Volkswagen took off first; Alvin Jones directed Swayne to follow in his red Cougar. Both cars, and all six persons, drove out of the District of Columbia into Seat Pleasant in Prince George's County, Maryland. All six individuals went into an apartment. They there joined codefendant Willie Lee Jones, Jr. ("Junior"). Swayne testified that he himself was a former drug user and that Alvin Jones was still, as of that night, a heavy drug user. Alvin Jones was in the process of "shooting some narcotic drugs into his arm" when Swayne heard a shot. He looked up and saw that three of the group  "Reds" Person, "Junior" Jones and "the tall slim black man" (the appellant)  all had pistols and were training them upon the other four men. Swayne, along with Cunningham, Dock and Alvin Jones, was told to lie down on the floor. All four of the victims were then covered up with blankets. Swayne heard conversation dealing with the fact *720 that "somebody's sister had been robbed." "Reds" Person and the appellant then placed all four of the victims into a blue Cadillac. Swayne and Cunningham were put on the floor of the back seat. Alvin Jones and Dock were put in the trunk. "Reds" Person and the appellant then drove the Cadillac for between twenty minutes and half an hour to an unknown location.
It was at this unknown location that the identification phase of the "drumhead court-martial" was to take place. Swayne overheard someone say, "Get Junior's sister." About half an hour later, Johnnie Mae Jones (Junior's sister) arrived at the scene. "Reds" Person ordered Cunningham and Swayne to lift up their heads from the floor. Johnnie Mae Jones identified Cunningham as one of the men who had robbed her, thereby sealing his doom. She indicated, on the other hand, that Swayne was not one of her robbers, thereby saving his life. She subsequently was observed to identify Alvin Jones, who lay in the trunk of the blue Cadillac, as one of the robbers. Although Swayne did not testify as to having observed her identify David Dock, who also lay in the trunk of the blue Cadillac, presumably he was also somehow "deemed guilty."
The testimony of Johnnie Mae Jones essentially corroborated that of Ronald Swayne. She testified that she was picked up by her brother "Junior" Jones at between 1 a.m. and 3 a.m. on the morning of October 24. Her brother drove her to a location in Maryland "on a dark road near a little white church." She there observed two of her brother's friends, "Reds" Person, whom she had known before, and a "tall slim black man," whom she had not known before and whom she knew that night only as "Slim." "Slim" and "Reds" then ordered Cunningham and Swayne out of the back seat of the Cadillac. She testified that she knew that there were other unidentified individuals there because she heard "someone banging on the trunk of the Cadillac." After she had exonerated Ronald Swayne, "Slim" ordered her brother "Junior" to take Swayne and to put him in the trunk of Swayne's own car, the red Cougar. "Slim" then ordered "Junior" Jones to take Johnnie Mae Jones and Swayne home. *721 "Junior" Jones and Johnnie Mae Jones left in the red Cougar, with Swayne in the trunk.
The story at that point is picked up by the testimony of Ronald Swayne. From his position in the trunk of his own red Cougar, he felt the car drive off. When the car stopped, "Junior" Jones released Swayne from the trunk but ordered Swayne to drive at "Junior" Jones's direction. As of the moment when Swayne was released from the trunk, Johnnie Mae Jones, presumably now "home," had left the automobile and the presence of Swayne and "Junior" Jones. At Jones's direction, Swayne drove the car to an unknown location where they rejoined "Reds" Person and "the tall slim black man" later identified as the appellant. The appellant ordered "Junior" Jones to put Swayne back in the trunk of Swayne's Cougar. From the trunk, Swayne heard a lot of shooting and then a "big boom." He heard people running back to the car, heard them "jump into the car and pull off." After the car had stopped, Swayne struggled for about five to ten minutes and finally "was able to pop his trunk open." He was the only one upon the scene and he drove his car home.
A disinterested witness, Donald McCain, supplied some of the missing threads. During the early morning hours of October 24, he was staying in a house in Seat Pleasant, Maryland. He looked outside and saw an individual standing by his U-Haul van. Apprehensive about his van, he kept a close lookout and then went outside. He saw parked near his van both a blue Cadillac and a red Cougar. When he walked outside, he observed two individuals, one whom he already knew as James "Reds" Person, who asked McCain for a cigarette. The other individual, later identified photographically as the appellant, he described as "a tall slim black man." After returning to the house where he was staying, he observed these two men walking up the street and one of them appeared to be carrying an object which looked like a gun. From the house, he later heard "about four, five or six shots; a few of these shots sounded like a shotgun and one sounded like a .22 caliber gun." He looked out the window and observed two individuals running back toward the two *722 cars. One of the individuals jumped into the blue Cadillac and the other jumped into the red Cougar and they both drove off.
Alvin Jones was found wounded in a nearby field. He later died at the Prince George's County General Hospital. Found wounded in a nearby creek bed was Anthony Cunningham, who also later died in the Prince George's County General Hospital. Also found in the creek with a head wound was David Dock, who was pronounced dead upon arrival at the Prince George's County General Hospital.
The appellant was granted a trial severance.[1] Identifications, both judicial and extrajudicial, were made of the appellant by three separate witnesses. Each of those identifications gives rise to an appellate contention.

1. The Extrajudicial Identification by Johnnie Mae Jones
At issue here is the mechanics of the identification as well as the constitutional soundness thereof. Although mechanically the identification involved a somewhat unusual two-step process instead of the more "garden variety" one-step process, we see no impediment. Involved was simply a bit of elementary logic as to which any fact finder should have the requisite competence. Johnnie Mae Jones had never seen the appellant before the night of the killings. At the trial, sixteen months after the fact, she was unable to make a judicial identification of him in the courtroom. (It is not without significance that the appellant had radically altered in appearance during the intervening sixteen months.) Johnnie Mae Jones, however, was unequivocal in her conclusion that the same "Slim" who had been the only member of the three-man "firing squad" not theretofore *723 known to her as of the morning of October 24, 1975, had been the same "Slim" who had stood in the dock with her; her brother, Willie Lee "Junior" Jones, Jr.; and James Richard "Reds" Person at a pretrial hearing on March 30, 1976, five months after the crimes and eleven months before for failure to identify the appellant in the courtroom at the time of the appellant's trial. Her testimony established the major premise of the ultimate identification syllogism: The "Slim" who was at the crime scene is the "Slim" who stood with my brother, "Reds" Person and me in the dock on March 30, 1976. A equals B.
The minor premise was supplied by Edward Garrison Neal, a former Assistant State's Attorney who had been present at the pretrial hearing of March 30, 1976. He stated that four prisoners stood in the dock. They included Johnnie Mae Jones, later turned State's witness; her brother, Willie Lee "Junior" Jones, Jr.; and James Richard "Reds" Person. The fourth person was Roland Neville "Slim" Godwin. Mr. Neal identified the Roland Neville Godwin who was a codefendant at the pretrial hearing of March 30, 1976, as the same Roland Neville Godwin sitting at the trial table as the defendant on February 7, 1977. B equals C.
With the evidentiary establishment of that minor premise, the conclusion was ineluctable:

A equals B.

B equals C.

therefore A equals C.
To wit, the "Slim" whom Johnnie Mae Jones observed at the crime scene is effectively identified as the appellant in this case. We see no flaw whatsoever in this chain of logic.
Granting that what was introduced in this case was an extrajudicial identification of the appellant made by Johnnie Mae Jones on March 30, 1976, the appellant challenges that extrajudicial identification on the grounds that it was impermissibly suggestive. We cannot agree with the appellant that exclusion was called for. We note initially that the police were not guilty of any contrived circumstances for *724 identification purposes. The pretrial hearing of March 30, 1976, was not contemplated as an identification procedure in any way, shape or form. Four defendants were in court to have hearings on motions made by them. They were not there to identify each other. Johnnie Mae Jones herself was still a full-fledged defendant, who had not agreed to become a State's witness. Self-evidently, she was not asked to identify anyone. The recollection that the man she knew as "Slim" at the crime scene had been with her in the prisoner's box at the pretrial hearing was something that came to light only during her testimony at the trial upon the merits. Moreover, the appellant was represented by counsel at the pretrial hearing of March 30, 1976. There was simply no Sixth Amendment violation of the right to the assistance of counsel such as would invoke the per se exclusionary rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
When we are looking not at a deprivation of the Sixth Amendment's right to counsel but only at so-called impermissive suggestiveness, it is now clear in the light of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Foster v. State, 272 Md. 273, 323 A.2d 419; and Dobson v. State, 24 Md. App. 644, 335 A.2d 124, that we exclude neither the extrajudicial identification itself nor a judicial identification based upon it except in those cases where there is a "substantial likelihood of irreparable misidentification." In Manson v. Brathwaite, the Supreme Court spelled out the factors which militated against a per se exclusionary rule even where there had been present an element of impermissive suggestiveness. In opting rather for the "totality of circumstances" approach, it said, at 53 L.Ed.2d 152-153:
"The third factor is the effect on the administration of justice. Here the per se approach suffers serious drawbacks. Since it denies the trier reliable evidence, it may result, on occasion, in the guilty going free. Also, because of its rigidity, the *725 per se approach may make error by the trial judge more likely than the totality approach. And in those cases in which the admission of identification evidence is error under the per se approach but not under the totality approach  cases in which the identification is reliable despite an unnecessarily suggestive identification procedure  reversal is a draconian sanction. Certainly, inflexible rules of exclusion, that may frustrate rather than promote justice, have not been viewed recently by this Court with unlimited enthusiasm."
The Court's conclusion in Manson v. Brathwaite was clear, at 53 L.Ed.2d 154:
"We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers.... These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself."
Applying the factors to be considered in this regard as spelled out in Neil v. Biggers, supra, we conclude, upon our constitutionally mandated, independent review, that no such likelihood was here present. Johnnie Mae Jones was in close contact with "Slim" for a significant period of time immediately preceding the shootings. "Slim" addressed her at point-blank range and asked her to identify at least several individuals. The incident was such as to rivet serious attention to it. The pretrial confrontation occurred within a few months of the crime. Johnnie Mae Jones appeared certain in her testimony that the man at the crime scene was the same man who stood with her as a codefendant at the pretrial hearing. *726 Under the "totality of circumstances" approach mandated by the due process clause of the Fourteenth Amendment, we perceive no error in the admission of this pretrial identification.

2. The Judicial Identification by Ronald Swayne
The surviving victim, Ronald Swayne, identified the appellant as one of his assailants. The appellant takes umbrage at this judicial identification, claiming it to have been the poisoned product of a tainted one-on-one showup conducted by the police approximately two days after the crimes. Although we are by no means persuaded that even the extrajudicial identification itself, measured against the standard set out in Neil v. Biggers, might not pass muster, for admissibility purposes, in terms of its substantial reliability, it is unnecessary to undertake that lengthy analysis. If the in-court identification is not, indeed, the product of the earlier extrajudical identification, the suggestiveness vel non of that earlier confrontation is immaterial. As we pointed out in Green v. State, 35 Md. App. 510, 523, 371 A.2d 1112:
"For an in-court identification to be suppressed, two things must be shown:

(1) That the extrajudicial identification procedure was the proximate cause of the ensuing in-court identification. (Even if there has been a tainted, to wit, impermissibly suggestive, extrajudicial identification procedure, the in-court identification may still be admissible if it is shown to be not the product of the earlier, tainted identification procedure....)."
In this case, the independent source of Ronald Swayne's judicial identification is clear. With the jury out of the room, the following was established unequivocally on direct examination:
"Q. Is your identification of the tall man in this *727 courtroom today, Mr. Swayne, based upon your observations of him through the entire incident, or was it based upon anything or anyone you saw that Saturday in the District of Columbia police station?
MR. DE PAUL: Objection.
THE COURT: Overruled.
THE WITNESS: Based upon what I seen during that incident."
The defense effort, on cross-examination, to cast doubt upon the independent source of the in-court identification was unavailing:
"Q. Of course, the help you got from the police helped you out a little bit, didn't it?
A. Not really."
The in-court identification was properly permitted.

3. The Extrajudicial Photographic Identification by Donald McCain
Evidence was introduced establishing that Donald McCain had on approximately March 31, 1976, identified a photograph of the appellant as one of the men he observed on the night of the crimes. Again, the lengthy analysis under Neil v. Biggers is unnecessary, because of the utter failure of the appellant to establish, as is his burden, any initial taint in the photographic viewing. There were ten pictures in the photographic array. Though all were not uniform, they were all of young Negro males, some with facial hair and some without. There was nothing to highlight the photograph of the appellant as the one to be picked. There was no suggestion that the police in any way indicated to McCain that it was the appellant's photograph that should be singled out. Under Smith and Samuels v. State, 6 Md. App. 59, 250 A.2d 285, the appellant simply did not carry his initial burden requiring the State to go forward in any regard.

*728 4. The Limitation Upon the Cross-Examination of the State's Witnesses
The appellant sought to cross-examine both Ronald Swayne and Donald McCain as to past criminal conduct or involvement with the police. Upon timely motion by the State, the trial judge ruled that such cross-examination, for purposes of impeaching credibility, must be limited to the showing of actual convictions of crime. With some few exceptions, this is the basic law of Maryland in this regard. Niemoth v. State, 160 Md. 544, 557, 154 A. 66; Hurley v. State, 6 Md. App. 348, 355, 251 A.2d 241; Neam v. State, 14 Md. App. 180, 188, 286 A.2d 540. The trial judge, in these situations, is faced with a delicate balancing. If there is a genuine suggestion or proffer that a witness's involvement with the police is subjecting that witness to a strong motivation to lie, such evidence should be permitted. On the other hand, it must be rigorously guarded against that a witness be diminished in the eyes of a jury simply by a showing that he is "a bad man." It is furthermore to be noted that our law is evenhanded in terms of impeachment and deals equally with witnesses in a civil setting and in a criminal setting and without regard to whether they are witnesses for the prosecution or witnesses for the defense. It will never be permitted that defendants be free to slash away at will at State's witnesses while having the character of their own witnesses more solicitously shielded from attack.
In this case, no proffer indicated that the police had subjected either State's witness to any pressure to testify on behalf of the State. Ronald Swayne was a victim of this crime, not a friend of the defense who was grudgingly turned into a State's witness. Under the circumstances, we see the effort of the defense to establish that Ronald Swayne had participated in several robberies that had been nol-prossed and that Donald McCain was "a dope pusher" and that he was involved with "prostitution rings" and with "stolen cars" as primarily an effort to discredit the two witnesses by showing that they were "bad men." In Johnson v. State, 30 Md. App. 512, 517, 352 A.2d 371, Judge Lowe pointed out the *729 cautious limitations that should be placed upon efforts such as those advanced by the appellant in this case:
"We do not mean to imply that any time a witness testifies against a criminal defendant his entire record of previous arrests becomes relevant to the inquiry. Only where there is some present possibility of coercion should such cross-examination be allowed. If it should appear that the cross-examination is directed simply at casting the witness in the suspicious light that falls upon anyone under formal accusation, the trial judge must not allow it."
We do not feel in this case that the trial judge abused the discretion which is wisely vested in him.

5. Allegedly Prejudicial Remarks in Closing Argument
The argument of the appellant to the effect that the prosecutor made prejudicial remarks in the course of closing argument is simply without factual predicate. The appellant claims that the prosecutor told the jury that Johnnie Mae Jones had made a photographic identification of the appellant, when in fact she had not made such a photographic identification. We cannot read into the words of the prosecutor any such meaning. In contrasting the ability to make an identification shortly after the crimes with the inability to make an in-court identification sixteen months later, the prosecutor was referring to the changed appearance of the appellant. He said the following:
"Now, we have two identifications, each of which is supporting the other. Where there might be a weakness in one, it is supported by the other, and vice versa.
But is that all we have? Is there anything more? Yes. She was our first witness. You heard her testimony. She was there. Johnnie Mae Jones.
She saw Roland Godwin as we see him in this picture." *730 The prosecutor was here referring to a picture which the jury had of the appellant as he looked sixteen months earlier. Although the grammatical structure of the sentence might permit of some ambiguity, we cannot perceive a clear and false statement having been made, and certainly not one calling for a mistrial. For the lack of a factual predicate, the argument falls.

6. Jury Instructions: "Premeditation"
The appellant complains that the trial judge did not give an instruction, or at least an adequate instruction, in terms of defining the element of premeditation. We cannot agree. Recognizing that "[t]here is no necessity for the court to use the exact language requested." Nelson v. State, 5 Md. App. 109, 120, 245 A.2d 606, we think that the trial judge in this case did convey the essential meaning of premeditation. His instruction in this regard was as follows:
"In Maryland there are two degrees of murder: murder in the first degree and murder in the second. And the distinction between the two is based on the element of premeditation and deliberation.

All murder which shall be perpetrated by means of poison or lying in wait or by any kind of willful, deliberate, and premeditated killing shall be murder in the first degree, and in that regard for a homicide to be willful there must be a specific purpose, and there must be a specific design to kill.

First degree murder, in essence, is killing in cold blood after having calculated the circumstances. The burden is on the State of Maryland, based on all the facts that you have heard, to show circumstances providing willfulness, deliberation, and premeditation, if you are to find Mr. Godwin guilty of murder in the first degree.
After a full and fair consideration of all the facts in this case, if you are not convinced beyond a reasonable doubt that the State has proven murder *731 in the first degree to your satisfaction, you will find him not guilty of that charge.
If, however, after a full and fair consideration of all the facts in this case you are convinced beyond a reasonable doubt that they have proven all the elements necessary to convict him of murder in the first degree, you are to find him guilty of this charge.

Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and without deliberation. After a full and fair consideration of all the facts and circumstances of this case, you are convinced beyond a reasonable doubt that the State has proven to your satisfaction all the elements necessary to convict him of this offense, you will find him guilty of this offense.
If, however, you are not convinced beyond a reasonable doubt after a full and fair consideration of all the facts and circumstances, you will find him not guilty." (Emphasis supplied)
Following the court's instructions, the exchange that occurred between appellant's counsel and the trial judge is enlightening:
"With regard to your definition of murder in the first definition, Your Honor gave  you said it was killing with malice. You did not use the phrase `with malice aforethought' as a distinction between
THE COURT: I don't know what `aforethought' is."
We applaud both the candor and the correctness of the statement. As of the Twentieth Century at least, the word "aforethought" is absolutely devoid of any meaning whatsoever. As we pointed out in Evans v. State, 28 Md. App. 640, 693-695, 349 A.2d 300:
"A similar erosion took place with respect to the word `aforethought.' In its pristine state, it connoted *732 that the intention to kill had existed some appreciable time before the actual execution of the deed. It connoted the same thing by way of preplanning that premeditation connoted early in the 19th century (when it entered the law as an attempt to rejuvenate the earlier meaning of `aforethought') and significantly more by way of preplanning than premeditation connotes today (premeditation having in the meantime suffered a semantic erosion of its own). The word `aforethought' today is devoid not simply of an ordinary, layman's meaning but of any meaning at all, even as a term of art. As is pointed out by Perkins, Criminal Law (2d Ed. 1969), at 34-35:
`Undoubtedly the word "aforethought" was added to "malice" in the ancient cases to indicate a design thought out well in advance of the fatal act. But as case after case came before the courts for determination, involving killings under a great variety of circumstances, there came to be less and less emphasis upon the notion of a well-laid plan. And at the present day the only requirement in this regard is that it must not be an after thought. "Killing with malice" is sufficient of itself to negative any possible notion of an afterthought, and apart from the historical background the word "aforethought" would not be needed.'
To the same effect is Purver, The Language of Murder, 14 U.C.L.A. L.Rev. 1306, 1309 (1967):
`Just as the word "malice" confuses and misleads, the word "aforethought" likewise muddles thinking:
"The fact that malice aforethought means merely that malice must exist at the same time as the act, in effect *733 makes `aforethought' meaningless surplusage, since the requirement is satisfied by the presence of malice or `concurrent' malice rather than an antecedent malice. The unimportant character of the adjective `aforethought' is seen in the fact that in many opinions `malice' and `malice aforethought' are used interchangeably and that in many, `aforethought' is itself omitted." [Quoting from 1 Wharton, Criminal Law and Procedure § 243, at 527 (Anderson Ed. 1957)]
Since today "aforethought" may be "as instantaneous as successive thoughts of the mind" or "on the spur of the moment," the word no longer serves its original function of drawing attention to the duration of the deliberation to kill as the criterion for distinguishing murder from other homicides.'
The use of the now anachronistic language still haunts us, however. As Purver further points out, at 1306:
`Precision in the use of legal language is essential, particularly in the law of homicide. In a murder trial the use of a word or turn of a phrase may mark the difference between whether the accused leaves the courtroom free  or sentenced to death.
Yet the phrase "malice aforethought," used in defining murder, peers at us like a demon through the dust of more than four hundred years of history, lying in wait to clutter statutes and confuse juries. In examining the historical background of the *734 phrase, one probes the roots of a term which, though withering on the vine, lives on to strangle the penal codes of the several states.'
And, at 1309:
`Since "malice" does not mean "ill-will" and "aforethought" does not mean "beforehand," jury instructions, though necessary, sound ridiculous.'
The word `aforethought' is today an absolutely useless appendage on our law. It has over the centuries been utterly drained of any meaning whatsoever. As a word of no utility but with an ever-present potential for confusion (some may innocently think that `aforethought' means aforethought), it should be struck from the lexicon of our homicide law."
Defense counsel then more appropriately went on to the more pertinent subject of "premeditation":
"With regard to the instruction on first degree murder, instruction Your Honor gave made no mention of premeditation in the sense of defining premeditation.
You simply said `premeditation'.
THE COURT: Do you have a definition?
MR. DE PAUL: Pre-planning, pre-conceiving.
THE COURT: I thought I said that."
We are persuaded that looking at the instruction as a totality, the necessary notion that the killing be thought out in advance was communicated to the jury. Particularly was this communicated by the sentence:
"First degree murder, in essence, is killing in cold blood after having calculated the circumstances."
Even if in some other circumstances, not here pertinent, a more painstaking and precise dissection of the element of *735 premeditation were necessary, this was not such a case. With a fully articulated and well-planned scheme of executions taking place over the course of several hours, that element of first-degree murder was so clearly and unequivocally established as to leave no room for debate. Realistically, the only question in this case concerned the criminal agency (the identification) of the appellant and not the corpus delicti of the crime. In commenting upon the harmlessness of the even arguable error, we note, moreover, that a common sense, layman's definition of "premeditation" would redound to the benefit of a defendant and the more formal, case-law definition of "premeditation," as a term of art, would work to the benefit of the State. Significant in this regard is the law on premeditation, as discussed in Chisley v. State, 202 Md. 87, 106-107, 95 A.2d 577:
"It is not necessary that deliberation and premeditation shall have been conceived or have existed for any particular length of time before the killing. Their existence must be judged from the facts of the case. Webb v. State, supra. The Court of Appeals of New York, in Leighton v. People, 88 N.Y. 117, 120, put it in this wise: `If, therefore, the killing is not the instant effect of impulse, if there is hesitation or doubt to be overcome, a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder.' The same ruling is made in People v. Majone, 91 N.Y. 211, 212: `Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. And when the time is sufficient for this, it matters not how brief it is.'"
A layman's understanding of "premeditation" would be something that requires an appreciable length of time; the *736 more sophisticated lore of the case law is that "premeditation," contrary to popular understanding, can occur in a very brief time. A failure to have told the jury this could only have helped the appellant, not hurt him. Error, even if such had been present, would under the circumstances of this case have been palpably harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

7. Felony-Murder and the Question of Merger
The appellant's final contention is that since the conviction for murder in the first degree might have rested upon Article 27, § 410, providing, inter alia, that all murder committed in the perpetration of a kidnapping shall be murder in the first degree, the underlying felony of kidnapping must, in three of the indictments at least, merge into the ensuing felony-murders. The appellant relies upon Newton v. State, 280 Md. 260, 373 A.2d 262. Newton, of course, does not stand for such a proposition at all. It rather holds that if the only credible evidence before a fact finder which could justify finding that the highest degree of blameworthiness existed in a homicide case was the fact that one of the felonies spelled out in §§ 408-409 or 410 was being perpetrated, or attempted, then and only then would the undergirding felony, or its attempt, merge of necessity into the conviction for homicide. If, on the other hand, there was legally sufficient, independent evidence of wilfulness, deliberation and premeditation under Article 27, § 407, then the merger would not be compelled. Newton v. State, 280 Md. at 273-274. And see Frye v. State, 37 Md. App. 476, 378 A.2d 155 (1977).
In the present case, the clear evidence establishing premeditation could not have been more beyond dispute. This was a classic "ambush" or "lying in wait" case. The three murderers set out upon a well-articulated and unequivocal scheme of luring into a trap, kidnapping, transporting to a deserted area, subjecting to an identification process at the hands of Johnnie Mae Jones and then executing all of those persons who had ostensibly robbed her. This calculated and deliberated chain of events stretched out over many miles and *737 several hours. There was no sudden anger or mutual affray. The homicide victims were helpless targets. Under the circumstances of this case, a merger of the convictions is not remotely called for.
The appellant urges that Frye v. State, supra, compels us to find a merger of the underlying felony into the murder unless the verdict, or the evidence, showed unmistakably that the murder was of the premeditated variety rather than of the felony-murder variety. He reads Frye overbroadly. Frye is, of course, predicated upon Newton v. State, supra. The holding of Newton, at 373 A.2d 267, was, in this regard, as follows:
"If ... the murder conviction is premised upon independent proof of wilfulness, premeditation and deliberation under § 407, or if the evidence is sufficient for a jury to find those elements, the offenses would not merge." (Emphasis supplied)
Even more significant than the words of Newton themselves is the fact that Newton cites as authority for this proposition the case of Robinson v. State, 249 Md. 200, 238 A.2d 875. In Robinson, as in the present case, there was ample evidence to support either a finding of premeditated murder or a finding of felony murder.[1a] The defendant in that case, as the defendant here, was urging that the conviction for the underlying felony (in that case assault with intent to rape) must merge into the murder conviction where there is a possibility that the first-degree murder conviction was *738 based upon the felony-murder theory. The Court of Appeals rejected that contention, saying at 249 Md. 209:
"Since there is an abundance of evidence to support a verdict of premeditated murder under § 407 of Article 27 we must reject appellant's presumption that the jury found him guilty of a felony murder under § 410. It is entirely possible, and we think it more than likely, that the jury's verdict reflects a finding that the murder of Florence was premeditated."
Judgments affirmed; costs to be paid by appellant.
NOTES
[1]  On January 3, 1977, a jury convicted codefendant Willie Lee "Junior" Jones, Jr., of three counts of first-degree murder, four counts of kidnapping and four counts of using a handgun. Jones was sentenced to three life terms, four 30-year terms and four 15-year terms, all sentences to be served consecutively. On October 4, 1977, a Prince George's County jury, presided over by Judge Levin, convicted codefendant James Richard "Reds" Person also of three counts of first-degree murder, four counts of kidnapping and four counts of using a handgun. Person is scheduled to be sentenced on November 7, 1977. On October 10, 1977, the indictment against Johnnie Mae Jones was nol-prossed, in exchange for her testimony as a State's witness.
[1a]  Indeed, there will frequently be situations where a finding of murder in the first degree is predicated not upon the premeditation theory or the felony-murder theory as mutually exclusive alternatives but rather upon both of them together. An over-rigidification of the decisional process could work untold mischief. Posit a hypothetical situation. All twelve jurors are unanimously agreed that a defendant is guilty of murder in the first degree. In terms of how they arrive at their decision, however, there is no such agreement. Three are adamantly convinced that there has been premeditation but no felony. Three others are adamantly convinced that there has been a felony-murder but no premeditation. Three others are equally stubborn in their insistence that the first-degree verdict is supported by both premeditation and felony-murder. Three others are absolutely persuaded that there is guilt of murder in the first degree but are in a state of balance as to whether it is because of the premeditation principle or the felony-murder principle. Is this jury hung? Is the declaration of a mistrial called for? Obviously not! Why? Because it would be absurd!


678 S.E.2d 160 (2009)
COOK
v.
The STATE.
No. A09A0209.
Court of Appeals of Georgia.
May 6, 2009.
*161 Annette L. Greene, for appellant.
Robert D. James, Solicitor-General, Matthew Ciccarelli, Assistant Solicitor-General, for appellee.
SMITH, Presiding Judge.
After a bench trial, Cindi Cardle Cook was convicted of a parental notification law violation and interference with custody. Her amended motion for new trial was denied, and she appeals, asserting that she did not make a knowing, voluntary, and intelligent waiver of her right to counsel or her right to a jury trial. Because the State failed to meet its burden of proving that Cook knowingly and intelligently waived her right to counsel, we reverse.
*162 Here, the record of pretrial and trial proceedings below is almost nonexistent.[1] The only transcript, with a cover sheet showing Cook as "pro se," is a brief exchange in which Cook stated that she was waiving a jury trial and requesting a bench trial and that she did not want the trial recorded.
The State initially argues that Cook has waived her claims because she failed to record the pretrial hearing or trial or provide a transcript through recollection. While this may be the general rule with regard to an appellant's duty to demonstrate error by the record, it does not apply in this case. The Georgia Supreme Court has held that, whether a charge is a felony or a misdemeanor, an accused facing a term of imprisonment is constitutionally guaranteed the right to counsel and must waive that right. Jones v. Wharton, 253 Ga. 82, 83, 316 S.E.2d 749 (1984). "`When the record is silent, waiver is never presumed, and the burden is on the State to present evidence of a valid waiver.' [Cit.]" Helmer v. State, 256 Ga.App. 717, 718, 569 S.E.2d 606 (2002).
It is well established that Cook
had a constitutional right to counsel at trial, subject only to a knowing and voluntary waiver of that right. The waiver of the right to counsel is valid only if it is made with an understanding of (1) the nature of the charges, (2) any statutory lesser included offenses, (3) the range of allowable punishments for the charges, (4) possible defenses to the charges, (5) circumstances in mitigation thereof, and (6) all other facts essential to a broad understanding of the matter. The state has the burden of demonstrating that the defendant received sufficient information and guidance from the trial court to make a knowing and intelligent waiver.
(Citations and punctuation omitted.) Manning v. State, 260 Ga.App. 171, 581 S.E.2d 290 (2003).
Although no particular questions are required as evidence of this waiver, the record must reflect that the defendant was made aware of the dangers of self-representation, and nevertheless made a knowing and intelligent waiver. The State may carry this burden by showing a valid waiver through either a trial transcript or other extrinsic evidence.
(Citations and punctuation omitted.) Godlewski v. State, 256 Ga.App. 35, 36, 567 S.E.2d 704 (2002).
The State did present some extrinsic evidence in the form of oral testimony at the hearing on the motion for new trial. An attorney representing the opposing parties in a related civil action filed against Cook testified that he was present in the courtroom when the trial court discussed the waiver of counsel with Cook. According to this witness, "[t]here were several times in my remembrance that the court actually addressed that and even to the extent ofof advising Ms. Cook that it's not a good idea to go forward without counsel." Counsel, however, was unable to recall many specifics of the questioning, other than whether Cook qualified for appointed counsel, her level of education, and whether she was under the influence of any drugs and was "competent to make a decision at that time." Beyond that, the witness could only state that he "would remember anything unusual" and that "there was nothing unusual asked."
While a trial judge need not question a defendant on each and every one of the six areas of questioning, the State still must demonstrate that the accused "was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver." (Citation and punctuation omitted.) State v. Evans, 285 Ga. 67, 68-69, 673 S.E.2d 243 (2009). This the State has failed to do.
No evidence was presented that Cook was "adequately informed of the nature of the charges against [her], the possible punishments [she] faced, the dangers of proceeding pro se, and other circumstances that might affect [her] ability to adequately represent [herself]." Spears v. State, 247 Ga.App. *163 626, 627, 545 S.E.2d 36 (2001). The witness at the hearing testified that Cook was told proceeding pro se was generally "not a good idea," but he did not testify that Cook was informed specifically of any of the dangers of self-representation, the nature of the charges against her, or possible punishments. And the absence of a trial transcript prevents any consideration of whether the failure to obtain a knowing and voluntary waiver was harmless. Compare Manning v. State, supra, 260 Ga.App. at 172-173, 581 S.E.2d 290.
We therefore reverse and remand this case for a new trial. Cook "may choose to be represented by counsel or to waive her right to counsel and defend herselfafter being made aware of the dangers of proceeding without counsel." (Citation and punctuation omitted.) Barnes v. State, 261 Ga.App. 112, 115, 581 S.E.2d 727 (2003). We note also that the bench and bar have been cautioned repeatedly that a record is often the only way for the details of a waiver to be preserved:
[W]e believe that the best way to ensure that a defendant fully appreciates the right he has chosen to relinquish, and that trial judges fully understand their duty in this process, is for the trial court to address each factor, individually, and on the record. By so doing, a trial court can likely avoid the time and expense of another trial. [Cit.]
Banks v. State, 260 Ga.App. 515, 520(2), 580 S.E.2d 308 (2003).
Judgment reversed and case remanded.
PHIPPS and BERNES, JJ., concur.
NOTES
[1]  It does not appear from the record that Cook ever signed a pre-trial waiver form, which may also provide some evidence of a valid waiver. See generally Dellinger v. State, 269 Ga.App. 878(2)(a), 605 S.E.2d 632 (2004).


457 F.2d 857
UNITED STATES of America, Appellee,v.Stephen LEEDS and Richard Gilbert, Appellants.
Nos. 535, 536, Dockets 71-2143, 71-2173.
United States Court of Appeals,Second Circuit.
Argued Feb. 18, 1972.Decided March 14, 1972.

Sheila Ginsberg, The Legal Aid Society, New York City (Robert Kasanof, New York City, on the brief), for appellant Leeds.
Neil J. Hurwitz, New York City (Marvin B. Segal and Segal & Hundley, New York City, on the brief), for appellant Gilbert.
John W. Nields, Jr., Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., and Howard Wilson, Asst. U. S. Atty., New York City, on the brief), for appellee.
Before FEINBERG and TIMBERS, Circuit Judges, and THOMSEN, District Judge.*
TIMBERS, Circuit Judge:

1
The only issues on appeal in this routine narcotics case which warrant brief mention are the alleged improper use by the prosecutor of Jencks Act1 statements and the prosecutor's reference in his summation to cross-examining "a man he thinks is a liar."

2
Appellants Leeds and Gilbert appeal from judgments of conviction entered upon a jury verdict after a four day trial in the Southern District of New York, David N. Edelstein, Chief Judge, finding them guilty on one count of conspiring to distribute Schedule I and Schedule II narcotic drug controlled substances, in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(A) and 846 (1970), and on two counts of distributing LSD and heroin, in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(A), 841(b)(1)(B)(1970) and 18 U.S.C. Sec. 2 (1970).  Each appellant was sentenced to concurrent 18 month terms of imprisonment.  Finding no prejudicial error, we affirm.

3
In view of the limited issues to which we address ourselves in this opinion, it is unnecessary to set forth the usual narrative of events during the extensive undercover investigation by the Bureau of Narcotics and Dangerous Drugs which culminated in the indictment returned on August 11, 1971.  We hold that there was more than sufficient evidence from which the jury could have found that appellants were engaged in the business of distributing LSD and heroin, and that they conspired to do so, during the period from July 7, 1971 until their arrest on August 4, 1971.2  At the trial, which began on October 6, 1971 and concluded on October 11, five special agents of the Bureau of Narcotics testified for the government.  Each of the appellants also testified, together with a character witness called by Gilbert.  It is fair to say that there were issues of credibility to be resolved by the jury.  In that context we turn directly to the two issues on appeal which merit brief discussion.

Jencks Act Statements

4
With respect to the alleged improper use of Jencks Act statements, the chain of events which led to appellants' claims on appeal started with the trial judge's pretrial order that the government turn over all Sec. 3500 material to defense counsel prior to trial.3  This was not required by the statute, 18 U.S.C. Sec. 3500(a)(1970), or by our decisions construing the statute.  United States v. Covello, 410 F.2d 536, 543-44 (2 Cir.), cert. denied, 396 U.S. 879 (1969); United States v. Gardin, 382 F.2d 601, 605 (2 Cir. 1967).  We mention this not to fault the trial judge who undoubtedly was trying to conserve time at the trial itself; for we repeatedly have indicated that a trial judge should have broad discretion in administering the Jencks Act.  United States v. Gardin, supra, 382 F.2d at 605; see United States v. Annunziato, 293 F.2d 373, 381-82 (2 Cir.), cert. denied 368 U.S. 919 (1961).  The point is that the production of the Jencks Act material here before the time appellants were entitled to it as a matter of right gave rise to the confusion at trial out of which appellants' claims of error arise.

5
*****

6
* * *

7
*****

8
* * *

9
In compliance with the judge's pretrial order, the government furnished to defense counsel on October 5, 1971 eight Jencks Act statements (GX 3501-3508) relating to the subject matter of the prospective testimony of those witnesses the government anticipated calling on its case in chief.  One statement (GX 3509) was not turned over for the reason that it related only to the subject matter of possible government rebuttal testimony.  It is this latter statement that has drawn the flak.4

10
Gilbert took the witness stand on his own behalf on October 7, Leeds on October 8. They and their counsel had had the Jencks Act material, with the exception of GX 3509, for two and three days, respectively.  Their direct testimony appeared to the prosecutor to have been tailored to conform to the Jencks Act statements that had been turned over; but their testmony as to their whereabouts on the evening of July 8, 1971 was at variance with the surveillance report for that evening-the only Jencks Act statement not turned over (GX 3509). During cross-examination of appellants, the prosecutor inquired whether they had discussed their testimony with their attorneys and with their co-defendant, and whether they had seen GX 3501-3508.  They answered in the affirmative.  The prosecutor, continuing his cross-examination, then established that appellants had not seen GX 3509 before testifying.  Up to this point, the prosecutor's cross-examination clearly was proper in attempting to show, if he could, that appellants had tailored their testimony according to the Jencks Act statements they had seen, and suggesting the obvious inference from their not having seen GX 3509.

11
Thereafter, in cross-examining Gilbert, the prosecutor attempted to show that GX 3509 related to the subject of surveillance on the evening of July 8; but the trial judge directed the prosecutor not to examine Gilbert about a report he had not seen.5  Then on summation, the prosecutor, referring to the night of July 8, said:

12
"The problem for Mr. Gilbert in that particular story is that he didn't realize that there were surveillance agents that night, also.  That wasn't one of the reports he saw before he testified."  (Emphasis added).

13
The government on appeal candidly concedes that the italicized statement above was improper because there had been no evidence that the reports Gilbert had read (GX 3501-3508) related to nights other than July 8, and that the report he had not read (GX 3509) did relate to the night of July 8. But the government argues that, upon the entire record, the prosecutor's erroneous reference to the fact that Gilbert had not read GX 3509 was harmless.  We agree.

14
First, Gilbert's counsel in summation having inaccurately described certain of the Jencks Act statements which were not in evidence,6 we think the prosecutor at the very least was entitled to state that the record did not support such description.  United States v. Feinberg, 140 F.2d 592, 595 (2 Cir.), cert. denied, 322 U.S. 726 (1944).  Secondly, by the time of summations, the surveilling agents of the night of July 8 (Agents Murphy and Crawford) had been called by the government as rebuttal witnesses and had squarely contradicted Gilbert's testimony as to the whereabouts of Leeds that night.

15
We hold, upon the entire record, that the prosecutor's alleged improper reference to the Jencks Act statements on cross-examination and in summation, if error at all, was harmless.  Rosenberg v. United States, 360 U.S. 367, 371 (1959); United States v. Hestie, 439 F.2d 131, 132 (2 Cir. 1971); United States v. Gardin, supra, 382 F.2d at 606.

16
"Liar" Language in Summation

17
With respect to the prosecutor's reference in his summation to cross-examining "a man he thinks is a liar," this issue warrants only brief mention.  The sentence involved is as follows:7

18
"One of the things that a trial lawyer likes to see happen when he gets up to cross examine a man he thinks is a liar is by some lucky break to see him lie on the stand, and to be able to show it by his own words."

19
In United States v. Hestie, supra, 439 F.2d at 132, where the prosecutor had said in his summation that "[t]o acquit, you have to call all four of those agents liars," we observed that "[p]rosecutors would do well to avoid such extreme statements."  We repeat that admonition here.

20
The government concedes in its brief in the instant case that "[t]he use of the phrase 'thinks he is a liar' was inappropriate."  And of course when such characterization is applied to a defendant, as distinguished from a government witness, the risk of prejudice is greater.  Read in context, however, we believe that the prosecutor's remark was no more than an attempt to lead into a discussion of two conflicting statements made by Leeds from the witness stand, stressing the significance of catching a defendant in a flat contradiction.  We are satisifed that the prosecutor was not asking the jury to imply knowledge on the part of the prosecutor based on matters extraneous to the record; nor was he asserting his opinion on guilt or innocence.  Under the circumstances disclosed by this record, we hold that the phrase was not prejudicial.  United States v. Hestie, supra, 439 F.2d at 131; United States v. Murphy, 374 F.2d 651, 655 (2 Cir.), cert. denied, 389 U.S. 836 (1967); United States v. Greenberg, 268 F.2d 120, 123-24 (2 Cir. 1959); United States v. Private Brands, 250 F.2d 554, 557 (2 Cir. 1957), cert. denied, 355 U.S. 957 (1958).  See Harris v. United States, 402 F.2d 656 (D.C.Cir. 1968).8

21
Moreover, no objection at trial having been made to this portion of the prosecutor's summation and since it did not constitute plain error, Fed.R.Crim.P. 52(b), appellants may not avail themselves of such error, if it were error at all, on appeal.  United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-39 (1940); United States v. Isaza, 453 F.2d 1259 (2 Cir. 1972), slip op. 1429, 1433 (January 19, 1972); United States v. DiBrizzi, 393 F.2d 642, 645-46 (2 Cir. 1968); United States v. Indiviglio, 352 F.2d 276, 281 (2 Cir. 1965) (en banc), cert. denied, 383 U.S. 907 (1966); United States v. Johnson, 331 F.2d 281, 282 (2 Cir.), cert. denied, 379 U.S. 905 (1964).

22
We have carefully considered each of the other claims of error raised by appellants' diligent counsel on appeal.  We hold as to each such claim of error either that it was not raised below and, not being plain error, may not be availed of by appellants on appeal; or that the claim of error is without merit.

23
The judgments of conviction of both appellants are affirmed.

*
 Of the District of Maryland, sitting by designation

1
 18 U.S.C. Sec. 3500 (1970)

2
 On this appeal, neither appellant challenges the sufficiency of the evidence to support the convictions on the substantive counts; they do claim there was insufficient evidence to establish the conspiracy.  Even at the trial, neither appellant denied the sale of LSD and heroin to one or more of the agents; both claimed to have been entrapped

3
 The record shows that on October 5, 1971, the day before the trial began, the trial judge on his own initiative raised the subject of Jencks Act material and ruled as follows:
"The Court:
And what about Jencks Act material?
Mr. Wilson: The government will have it available tomorrow.
The Court: I see no reason why you cannot make it available now in court.  Let us anticipate that and get it out of the way.
Mr. Wilson: Your Honor, might I be heard on the Jencks Act material?
The Court: Surely.
Mr. Wilson: The government would ask that it rely on the statute itself.
The Court: No, I have made my decision.  I see nothing so crucial here as not to turn over the Jencks Act material today in court.  Now let us get it finished.
Mr. Wilson: I will have it xeroxed."

4
 We are constrained to note in passing that this case is another illustration of what strikes us as doubtful wisdom on the part of the government in withholding production of Jencks Act statements.  While we are mindful of the trial strategy here involved and the order for premature production, we find nothing whatsoever in GX 3509 that conceivably could have been prejudicial to the government if it had been turned over at the same time as the other Jencks Act material.  To save needless argument in the trial court and on appeal, we think the government would be well advised to avoid in the future the practice of withholding production of Jencks Act statements of this character

5
 In view of our ruling below with respect to the use of the Jencks Act statements, it is unnecessary for us to pass upon the correctness of the trial judge's direction to the prosecutor in this regard

6
 For example, Gilbert's counsel in his summation argued that Agent Ferrarone, realizing just before trial that he had no proof connecting Gilbert with the conspiracy to sell narcotics, had made up the incriminating evidence about Gilbert.  Gilbert's counsel then made this statement about Agent Ferrarone's reports, of which there were four (GX 3501, 3502, 3503 and 3505):
"But he remembers now what he didn't remember then to put down in his report[s]. He didn't put any of it down.  Not that, nor anything else regarding Richard Gilbert."
This statement is flatly contrary to Agent Ferrarone's reports made during the period July 9-August 6, 1971, each of which squarely incriminates Gilbert.

7
 The prosecutor in his summation also referred several times to the unlikelihood that the agents had been lying

8
 In view of the earnestness with which counsel urge upon us the authority of Harris (the majority opinion having been written by then Circuit Judge, now Chief Justice, Burger), we wish to point out that the situation there was quite different from the situation in the instant case.  In Harris there was only one narrow question of fact, and, under the circumstances of that case, the remarks of the prosecutor in his closing argument that the testimony of the defendant was a lie or fabrication amounted to a statement that the defendant was guilty in the prosecutor's opinion.  The principal part of the opinion is devoted to the impropriety of counsel asserting to the jury what, in essence, was his opinion on guilt or innocence.  The upshot of the case was that the judgment of conviction was affirmed.  We are in accord with the opinion and the holding in Harris; but we do not believe that the prosecutor's remarks in the instant case should reasonably be construed as "expressions of personal opinions on the ultimate issue by counsel", or as an assertion by counsel "to the jury what in essence is his opinion on guilt or innocence."  Harris v. United States, supra, 402 F.2d at 657, 658


75 B.R. 314 (1987)
In re Randall R. BAILEY and Beth H. Bailey, Debtors.
PORK PRODUCERS, LTD., et al.
v.
Randall R. BAILEY, Beth R. Bailey, and T. Larry Edmonson, Trustee.
No. 3-86-0111, Bankruptcy No. 386-01026, Adv. No. 382-0208.
United States District Court, M.D. Tennessee, Northeastern Division.
March 27, 1987.
*315 James F. Sanders, Nashville, Tenn., for plaintiffs.
Julian D. Butler, Huntsville, Ala., T. Larry Edmondson, Nashville, Tenn., for defendants.

MEMORANDUM
MORTON, Senior District Judge.
This matter is before the court upon appeal from the United States Bankruptcy Court for the Middle District of Tennessee of an order issued by Judge Paine granting a motion by the defendants for a judgment notwithstanding the verdict and a conditional grant of a new trial. For the reasons which follow, this case shall be remanded for a new trial.
This protracted litigation originated in the United States District Court for the Middle District of Tennessee by a complaint filed on December 18, 1981, which alleged fraud and breach of contract. Before this civil action could be heard, the defendants filed a Chapter VII petition for bankruptcy on April 2, 1982. On April 6, 1982, the plaintiffs filed a complaint in the U.S. Bankruptcy Court for the Middle District of Tennessee, seeking to lift the automatic stay for a trial of the pending cause in district court. On May 28, 1982, Judge Paine denied the plaintiffs' request for relief from the stay provided an application for removal to the bankruptcy court was timely filed. He approved the application for removal and set a trial date for the adversary proceeding on July 26 and 27, 1982. A continuance was subsequently granted, and a jury trial on the issues of fraudulent misrepresentation and dischargeability commenced on November 30, 1982. After a lengthy trial, on December 7, 1982, the jury returned a special verdict form holding, inter alia, the Baileys liable to the plaintiffs for fraudulent misrepresentation with compensatory damages of $25,000, punitive damages of $10,000, and finding the Baileys' debt to the plaintiffs to be nondischargeable.
On December 17, 1982, the defendants petitioned the court for a JNOV in favor of the defendants or in the alternative for a new trial or to alter or amend the judgment. On January 24, 1983, a hearing was held on the JNOV motion. The motion was taken under advisement, and the defendants' attorney was instructed to prepare findings of facts and conclusions of law granting the JNOV. Plaintiffs' attorney was informed by Judge Paine that he would be allowed to file "a motion to reconsider that, if I sign with the facts contained therein." Transcript of Proceedings, January 24, 1983, p. 20. A period of approximately 15 months passed with neither party filing any pleadings regarding the JNOV. On May 11, 1984, Judge Paine ordered the parties to appear on June 1, 1984, to show cause why the action should not be dismissed. On May 23, 1984, the plaintiffs moved the court to strike the defendants' JNOV motion for their failure to submit proposed findings of fact and conclusions of law. Although the record does not reflect the date on which the defendants provided Judge Paine with their proposed memorandum, on August 24, 1984, the plaintiffs responded to the defendants' proposed memorandum in a 96-page "brief." Approximately 15 months later, on December 6, 1985, Judge Paine signed and entered the defendants' memorandum *316 and order granting a judgment for the defendants notwithstanding the verdict on the ground that there was insufficient evidence upon which the jury could properly find a verdict for the plaintiffs separately and against the defendants separately on the issues of both liability and dischargeability and granting a conditional new trial on the ground that the issue of nondischargeability is not a jury issue, should the JNOV be reversed or vacated. This appeal followed. The transcript of the jury trial was designated on appeal, partially by the plaintiffs/appellants and the remainder by the defendants/appellees.
In the preparation of the findings of fact and conclusions of law for Judge Paine's approval, the appellants filed excerpts of the trial testimony which they felt were favorable to their position. The remainder of the trial was never transcribed, and attempts by both parties, as well as this court, to obtain a complete transcript were unsuccessful. Marylou Y. Cross, owner of Certified Reporting Association, which was the official court reporting firm at the trial, filed an affidavit on November 14, 1986, stating that all notes and tapes in this proceeding were submitted to the Clerk of the bankruptcy court in approximately May of 1985 and that at that time no notes or tapes were missing. Maurine D. Neel, Clerk of the bankruptcy court, likewise filed an affidavit on November 10, 1986, that a diligent search of her court records failed to disclose the notes or tapes of this proceeding. Therefore this court has benefit of only a portion of the trial transcript.
The plaintiffs/appellants contend on appeal that (1) Judge Paine failed to apply the proper legal standard in ruling on the defendants' JNOV motion or that he disregarded that standard and substituted his own judgment on the factual issues decided by the jury; and (2) the decision of the jury is binding on the defendants and the bankruptcy court because the issues were submitted to the jury without objection and by consent of the parties.
The only logical and plausible resolution of this appeal is to order a new trial. A quick review of the available options reveals this necessity. Assuming the court adopted one of appellants' arguments, i.e., that Judge Paine was in error by improperly evaluating the standard for a JNOV, or that he imposed his own judgment and disregarded the standard, or upon a review of the available transcript[1] we find that sufficient evidence exists upon which reasonable minds could differ, and on any one of those grounds the grant of a JNOV is reversed and the jury verdict reinstated, the conditional grant of a new trial must be affirmed. Therefore, reversing the JNOV would be a meaningless ruling since we find the grant of a new trial to be the proper course of action. The basis for granting a new trial was that the question of nondischargeability is not a jury issue. The grant of a new trial is in the sound discretion of the trial judge, and we find no abuse of discretion in ordering a new trial for the following reasons.
We concur with the weight of authority which holds that no right to a jury trial exists on the question of dischargeability in a bankruptcy proceeding. See Matter of Merrill, 594 F.2d 1064 (5th Cir. 1979); In re Swope, 466 F.2d 936 (7th Cir.1972) (per curiam); In re Palfy, 336 F.Supp. 1268 (N.D.Ohio 1972) (Krupansky, J.); In re Proehl, 36 B.R. 86 (W.D.Va. 1984); In re Schmid, 54 B.R. 520 (Bankr.E. D.Pa.1985); In re O'Bannon, 49 B.R. 763 (Bankr.M.D.La.1985). Since the plaintiffs were not entitled to a jury trial, Judge Paine was free to treat the jury verdict as merely advisory rather than binding. The plaintiffs argue that since the case was tried to a jury with the consent of all parties, any verdict as a result thereof *317 would be binding upon the judge and subject only to be set aside according to the proper standards for a JNOV. A Sixth Circuit case with analogous facts provides some helpful guidance. In Morelock v. NCR Corp., 546 F.2d 682 (6th Cir.1976), an age discrimination case, the plaintiff demanded a jury, and the district court refused to strike the jury demand as the defendant requested. The jury returned a judgment for the plaintiff. Upon the defendant's motion, a JNOV and conditional new trial was granted. The appellate court viewed the use of the jury as advisory and remanded the case for findings of fact and conclusions of law by the district judge, vacating the JNOV and conditional new trial, stating:
As no constitutional right to a jury trial existed in this action, the jury impaneled by the District Court was, in effect, an advisory one. Hyde Properties v. McCoy, 507 F.2d 301 (6th Cir. 1974). When an advisory jury is used, the ultimate responsibility for findings of fact and conclusions of law remains with the district court.
Morelock, 546 F.2d at 689. While no motion to strike the jury demand was made in the case before us, the fact that one party consents to a jury trial demanded by the adverse party is irrelevant to the issue of whether a right to a jury verdict exists. Consequently, under Morelock, it would be appropriate to remand this case for the issuance of findings of fact and conclusions of law by the district court. However, since the trial of this matter was held more than 4 years ago and no complete transcript of the case exists or can be obtained, the inescapable conclusion is that a new trial is warranted. Even if the bankruptcy court were able to accurately recall all the pertinent facts necessary to draft an opinion, the incomplete state of the trial transcript would preclude later appellate review thus potentially requiring a retrial. We have not overlooked the possibility of treating the memorandum and order granting the JNOV as findings of fact and conclusions of law for purposes of review. However, as aforestated, the unavailability of a complete transcript renders us incapable of properly reviewing factual findings for clear error.
Turning to the appellees' position  that the JNOV was proper and should be affirmed based on an incomplete transcript  we find such proposal simply untenable. Even assuming we pass the hurdle of whether the proper standards were utilized in granting the JNOV (about which we express no opinion), our review of his implementation of those standards must be based upon all the evidence. See e.g., E.H. Boerth Co. v. Lad Properties, 82 F.R.D. 635 (D.Minn.1979) (setting forth the standards for evaluating a JNOV motion). A new trial, and only a new trial, can resolve the "catch-22" situation of this appeal.
Alternatively, the defendants/appellees urge the court to affirm the decision of the bankruptcy judge on the basis that the plaintiffs/appellants were at fault for failing to designate the entire transcript on appeal. In support of that argument, reference is made to Rule 10(b)(2) of the Federal Rules of Appellate Procedure[2] and a Tenth Circuit case[3] which affirmed a trial court's factual findings due to the absence of a transcript. Crucial to their decision, however, was the fact that neither party designated the transcript. In the case at bar, the entire transcript was designated, but is unavailable because the notes and tapes are missing. We decline to adopt the reasoning that a blanket affirmance is mandated when the transcript is unavailable for review of factual findings. Cf. Cockrham v. South Central Bell Telephone Co., 695 F.2d 143 (5th Cir.1983) (retrial ordered where one-half of trial transcript lost). Alternatively, the court is urged to follow the procedure set forth by the Sixth Circuit in Herring v. Kennedy-Herring *318 Hardware Company, 261 F.2d 202 (6th Cir.1958) where the court reporter died before transcribing the trial and the case was remanded to determine if a fair and satisfactory record could be prepared for the purpose of review.[4] While such an attempt (which is now suggested in modified form by the Fed.R.App.P. 10(c) and (d)) might prove fruitful in some instances, we feel the effort would be futile under the circumstances of this case. An accurate reconstruction of the record is highly improbable in light of the length of the trial and the extended lapse of time since its conclusion. We shall not waste any more time by ordering that this attempt be made.
In summary, the court expresses no opinion as to the propriety of Judge Paine's grant of a JNOV. The bankruptcy court shall schedule a new trial of this case. An appropriate order will be entered.

ORDER
In accordance with the memorandum contemporaneously filed, it is ORDERED that this case is remanded to the U.S. Bankruptcy Court for the Middle District of Tennessee for a new trial.
NOTES
[1]  Reversal of a JNOV is generally possible based upon a review of only portions of a trial transcript if those portions contain sufficient evidence to support more than one conclusion by a jury of reasonable persons. The entire record is essential, however, to support an affirmance since a review of all the evidence is necessary to agree with a ruling that there was but one conclusion a reasonable jury could reach. Moreover, a cursory review of the available testimony indicates that the record before us is insufficient to extract the necessary elements of fraudulent misrepresentation, so that in this case reversal as well as affirmance is precluded.
[2]  Fed.R.App.P. 10(b)(2) provides:

If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion.
[3]  Rachbach v. Cogswell, 547 F.2d 502 (10th Cir. 1976).
[4]  Shortly after remand, the district judge certified to the appeals court that the case should be retried. Herring v. Kennedy-Herring Hardware Company, 265 F.2d 222 (6th Cir.1959).