S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Harold Gibson, Respondent/Petitioner,
v.
State of South Carolina, Petitioner/Respondent.
ON WRIT OF CERTIORARI
Appeal From York County
Robert L. McFadden, Trial Judge
John C. Hayes, III, Post-Conviction Judge
Opinion No. 24914
Submitted January 21, 1999 - Filed March 8, 1999
AFFIRMED IN PART; REVERSED IN PART
Tara Dawn Shurling, of Columbia, for
Respondent/Petitioner.
Attorney General Charles M. Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, and
Assistant Attorney General Matthew M. McGuire, all
of Columbia, for Petitioner/Respondent.
WALLER, A.J.: Respondent-Petitioner Harold Gibson (Gibson)
pleaded guilty to voluntary manslaughter and was sentenced to twenty-one
years in prison. He did not appeal the conviction or sentence.
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GIBSON v. STATE
Gibson filed a post-conviction relief (PCR) application dated March
2, 1995. A circuit judge granted Gibson a new trial based on a Brady1 violation,
but rejected Gibson's argument the prosecutor had committed misconduct.
Petitioner-Respondent (the State) and Gibson contend the judge erred. We
affirm in part and reverse in part.
FACTS
The State accused Gibson of murdering a long-time friend, Bobby M.
Griffin (victim), in a late-night shooting at Gibson's bar in 1989. From the
beginning, Gibson claimed the shooting was an accident. He and other witnesses
told police he fired a nine-mm automatic handgun into the wall of his bar to
subdue the victim, who had been drinking, and convince everyone to leave.
Gibson told police everyone left, then the victim went back inside the bar to
confront Gibson again. Gibson suspected the victim was armed. Gibson, holding
the handgun only by the butt and not the trigger, slapped the victim on the
forehead with the gun. The gun fired; a bullet struck the victim in the forehead
and killed him.
The key evidence consisted of the testimony of two alleged
eyewitnesses, Robert Peterson and Anna Lanier Ross. Peterson told police he
followed the victim and Gibson back into the bar after Gibson had ordered
everyone to leave. Peterson corroborated Gibson's version of events, particularly
the statements that the gun went off after Gibson struck Griffin with it. Ross,
who was the victim's girlfriend, told police she went to a window and looked
inside after the victim went back into the bar. She claimed she "saw [Gibson]
point the pistol at [the victim] and shoot him."
Four other witnesses told police that Ross either was sitting in her
car or standing next to it when the fatal shot was fired. She ran inside only after
the shot was fired to find the victim dying on the floor, according to the
witnesses.
Gibson filed a discovery motion pursuant to Brady and Rule 5,
SCRCrimP. Gibson pleaded guilty after a jury had been selected, which resulted
in the prosecutor describing the statements of Peterson and Ross to the judge.
1 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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GIBSON v. STATE
The prosecutor said Peterson told police the gun discharged after Gibson struck
the victim with it. the prosecutor said that "another witness, [Ross], was
outside and indicates that she saw a different version with the defendant having
pointed the gun at the victim's head." The prosecutor did not reveal any changes
Ross had made in her story or any misgivings about the veracity of her potential
testimony. Petitioner pleaded guilty to voluntary manslaughter after answering
the usual questions regarding his constitutional rights.
In February 1992, the victim's family sued an insurance company
in an effort to collect under an accidental death provision of the victim's life
insurance policy. Gibson learned for the first time through the testimony of
investigating officers that they and the prosecutor had visited the crime scene
with Ross. Gibson also learned the officers did not believe Ross's statement that
she saw the shooting through the window because her view would have been
blocked by curtains and a Donkey Kong video game.
Ross testified in the civil trial that she opened the door of the bar to
see Gibson point the gun at the victim and shoot him. Three witnesses told the
jury the same thing they had told police during the investigation, i.e., that Ross
was either in or beside her car when the shooting occurred and could not have
seen what happened inside the bar. In addition, it was raining and sleeting that
night, and the door of the bar was equipped with a device that automatically
closed it.
Gibson testified in the civil trial that he repeatedly tried to calm the
victim, who had been his friend and a fellow logging truck driver for twenty
years, and make him leave the bar peacefully. When the victim came back
inside the bar, Gibson believed he was armed because the victim kept his hand
down by his side. Gibson grabbed his handgun by the butt and hit the victim on
the left side of his head, hoping to "knock some sense into him." He was shocked
when the gun discharged because he had not pulled the trigger. Gibson held the
victim in his arms until he died a few minutes later.
At the PCR hearing, petitioner's trial attorney testified he visited
the crime scene with Gibson. The attorney was fully prepared to impeach Ross
in an effort to discredit her claim that she had witnessed the shooting through
the window. He recognized, however, that determining how the shooting
occurred was a factual issue for the jury. The attorney testified he knew police
and prosecutors did not believe Ross's statements were credible, but did not
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GIBSON v. STATE
recall receiving any information that the prosecutor had taken Ross to the scene
to discuss her statements. In his estimation, the investigating officers and the
prosecutor simply confirmed his belief that Ross was not credible.
The trial attorney's co-counsel testified he visited the scene with the
attorney and Gibson to collect evidence to discredit Ross's claims. At the time
of Gibson's guilty plea, the co-counsel did not know police and the prosecutor did
not believe Ross's claims; nor did he know they had taken Ross to the scene to
confront her.
The prosecutor testified that, after confronting Ross at the scene,
there
came a time when I was convinced that she could not
see what she said she saw from where she said she saw
it. She said she was standing at a window looking in
the bar. And we looked at some pictures and there was
a Donkey [Kong] machine in front of that window when
the pictures were taken of the scene that night and we
determined that she could not have seen through that
window. And I confronted her with that and she never
denied seeing what she said she saw in the bar. She
then began to hedge on where she was standing. She
said, well, maybe I wasn't there, maybe I was at the
door or something to that effect. She still said she saw
what she saw and she never wavered on that.
The prosecutor testified he told Gibson's attorney that Ross could not
have seen what she claimed. The prosecutor did not recall whether he also told
Gibson's attorney that he had reached his conclusion after confronting Ross
at the scene and hearing her change her story. When pressed further, the
prosecutor testified he could not recall exactly when Ross changed her story. He
did not document the changes to Ross's previous statement in writing. If the
case went to trial, the prosecutor intended to offer Ross's testimony, then place
an investigator from his office on the stand to testify that a person could not see
inside the bar through that window.
Two investigating officers testified, as they had at the civil insurance
trial, that they did not believe Ross could have seen the shooting through the
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GIBSON v. STATE
window. They corroborated the prosecutor's testimony about confronting Ross
at the scene and her continued insistence that she saw the shooting. However,
the officers did not recall Ross ever changing her statement to say she must have
seen the shooting through the door. Neither officer told Gibson's attorney
verbally or in any written report given to the attorney that they had taken Ross
to the scene.
Gibson testified he struck the victim with the gun and it fired
accidentally. He believed the prosecutor planned to use Ross's testimony at trial.
He knew Ross was lying, but had no way of proving it. His attorney said he
thought he could prove Ross was lying, but no one ever told him that Ross had
changed her statement to say she must have se en the shooting through the door
after the prosecutor and police confronted her at the scene. Nor did anyone ever
tell Gibson that the prosecutor and police were convinced she was lying, Gibson
testified. If he had known those facts, he would have stood trial instead of
pleading guilty, Gibson testified.2
The PCR judge, after considering oral arguments as well as
memoranda from both parties, ruled the State had violated Brady by failing to
fully disclose all material exculpatory or impeachment evidence regarding Ross's
statements. The prosecutor should have disclosed the visit to the scene with
Ross and the material change in her testimony. The judge ruled that
[t]his information was material regardless of defense
counsel's independent knowledge of the physical
parameters of the crime scene. Defense counsel could
2 In other testimony at the PCR hearing, Gibson's wife and sister testified
that Gibson's attorney told them that Ross's testimony would be "very
damaging." The attorney also told them that Peterson, the other eyewitness,
would not be credible because he had suffered a stroke and short term memory
loss.
Two pathologists, including the one who performed the autopsy, testified
they found nothing that would conflict with Gibson's version of events. Gibson's
handgun did not have safeguards used on newer models to prevent such
accidental firings, although Gibson was unable to find an expert who could
definitively testify the gun accidentally fired as he said it did.
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GIBSON v. STATE
have challenged [Ross's] veracity merely on the basis of
the measurements he had taken himself. However, the
withheld information provided an infinitely stronger
basis for challenging the prosecution's key witness and
for exculpating the defendant . . . . Only in its full form
did the information constitute evidence with
exculpatory or impeachment value. By contrast, the
information actually provided, that the prosecution
believed [Ross] could not have seen through the
window, was inadmissible into evidence and thus,
inherently - lacking in exculpatory or impeachment
value. . . . [T]here is a grave difference between
thinking you can impeach a witness and knowing that
the State has established that the witness's sworn
statements are untrue.
The PCR judge set aside Gibson's guilty plea and granted him a new trial based
on the Brady violation. The judge also ruled the prosecutor had not committed
misconduct.
ISSUES
1. Does probative evidence support the PCR judge's
ruling that Gibson is entitled to a new trial on
the basis of a Brady violation?
2. Does probative evidence support the PCR judge's
ruling that the prosecutor did not commit
misconduct?
1. BRADY VIOLATION
The State contends the PCR judge erred in granting Gibson a new
trial on the basis of a Brady violation. The State asserts that Gibson's attorney
believed he could effectively impeach Ross and had told Gibson so. "Based on the
testimony at the PCR hearing, it is clear that the outcome of the proceedings
would not have changed; [Gibson] would not have proceeded to trial even if the
solicitor specifically informed defense counsel that the State's witness had been
taken to the crime scene," the State argues. Gibson pleaded guilty because he
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GIBSON v. STATE
knew he would receive no less than a voluntary manslaughter conviction if he
stood trial, the State contends. We disagree.
A defendant who pleads guilty usually may not later raise
independent claims of constitutional violations. See Rivers v. Strickland, 264
S.C. 121, 124, 213 S.E.2d 97, 98 (1975) (stating "[t]he general rule is that
a plea of guilty, voluntarily and understandingly made, constitutes a waiver of
nonjurisdictional defects and defenses, including claims of violation of
constitutional rights prior to the plea"). However, "a defendant's decision
whether or not to plead guilty is often heavily influenced by his appraisal of the
prosecution's case." Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir.
1995); accord Gusting v. State, 325 S.C. 123, 127-28, 480 S.E.2d 444, 446 (1997)
( "waivers of constitutional rights not only must be voluntary but must be
knowing, intelligent act done with sufficient awareness of the relevant
circumstances and likely consequences").
When a defendant lacks knowledge of material evidence in the
prosecution's possession, the waiver of constitutional rights cannot be deemed
knowing and voluntary. Sanchez, 50 F.3d at 1453; accord White v. United
States, 858 F.2d 416, 420-22 (8th Cir. 1988) (adopting same principle); Miller v.
Angliker, 848 F.2d 1312,1319-20 (2d Cir. 1988) (adopting same principle); Royal
v. Netherland, 4 F. Supp.2d 540, 566 (E.D. Va. 1998) (stating same principle);
New York v. Burney, 642 N.Y.S.2d 990, 992 (N.Y. Sup. 1996) (collecting cases
and noting the federal trend permitting defendants to pursue such claims even
though Brady and its progeny do not address the withholding of Brady material
prior to the entry of a guilty plea).
"The government's obligation to make such disclosures [of Brady
material] is pertinent not only to an accused's preparation for trial but also to his
determination of whether or not to plead guilty. The defendant is entitled to
make that decision with full awareness of favorable material evidence known to
the government." United States v. Avellino, 136 F.3d 249, 255 (2d Cir.1998).
Accordingly, Gibson may challenge the voluntary nature of his guilty plea in a
PCR action by asserting an alleged Brad violation. E.g., Carter v. State, 329
S.C. 355) 495 S.E.2d 773 (1998) (illustrating an applicant may challenge the
voluntary nature of a guilty plea in a PCR action).
A Brady claim is based upon the requirement of due process. Such
a claim is complete if the accused can demonstrate (1) the evidence was
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GIBSON v. STATE
favorable to the accused, (2) it was in the possession of or known to the
prosecution,3 (3) it was suppressed by the prosecution, and (4) it was material
to guilt or punishment. Kyles v.Whitle , 514 U.S. 419, _, 115 S.Ct. 1555,
1565-69,131L.Ed.2d 490, 505-10 (1995); Brady, 373 U.S.at 87, 83 S.Ct.at1196,
10 L.Ed.2d at 218; State v. Von Dohlen, 322 S.C. 234, 241, 471 S.E.2d 689, 693
(1996). This rule applies to impeachment evidence as well as exculpatory
evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87
L.Ed.2d 481, 490 (1985); State v. Von Dohlen, supra.
Gibson's case falls into the third of three distinct categories of Brady
violations identified by the Supreme Court in United States v. Agurs, 427 U.S.
971 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Those categories are (1) cases that
include nondisclosed evidence of perjured testimony about which the prosecutor
knew or should have known, (2) cases in which the defendant specifically
requested the nondisclosed evidence, and (3) cases in which the defendant made
no request or only a general request for Brady material. Id. at 103-107, 96 S.Ct.
at 2397-99, 49 L.Ed.2d at 349-52. Gibson's pre-trial Brady motion requested
[a]ll information of whatever form . . . which tends to exculpate the defendant
either through the potential impeachment of any State witness and all
information of whatever form . . . which may lead to evidence which tends to
exculpate the defendant . . . or impeaching the credibility of any potential
State's witness. . . ."
In "specific request" and "general- or no-request" situations,
"favorable evidence is material, and constitutional error results from its
suppression by the government, if there is a reasonably probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
3 Brady and its progeny place the burden upon the prosecutor to know all
the relevant facts of a case in order to decide what information to disclose as
exculpatory or impeachment evidence. Kyles v. Whitle 514 U.S. 419, _, 115
S.Ct. 15552 1567-68, 131 L.Ed.2d 490, 508 (1995) (prosecutor can establish
procedures and regulations to carry the State's burden of disclosure and to
ensure communication of all relevant information on each case to every lawyer
who deals with it); accord State v. Von Dohlen, 322 S.C. at 240, 471 S.E.2d at
693 (information known to investigative agencies may be imputable to
prosecutor, but prosecutor has no duty to go on fishing expedition to find
exculpatory or impeachment evidence).
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GIBSON v. STATE
been different . . . . A reasonable probability of a different result is accordingly
shown when the Government's evidentiary suppression undermines confidence
in the outcome of the trial." Kyles v. Whitley, 514 U.S. at _, 115 S.Ct. at 1565
662 131 L.Ed.2d at 505-06 (internal quotes omitted); accord State v. Von Dohlen,
322 S.C. at 241, 471 S.E.2d at 693.4 The court must consider the suppressed
evidence collectively, not on an item-by-item basis. Kyles v. Whitle , 514 U.S.
at 115 S.Ct. at 1567, 131 L.Ed.2d at 507.
The standard for deciding the materiality of a Brady violation in the
context of a guilty plea is a novel issue in South Carolina. We adopt the
standard applied by other courts, which essentially is the same standard that is
applied in the context of a. trial: A Brady violation is material when there is a
reasonable probability that, but for the government's failure to disclose Brady
evidence, the defendant would have refused to plead guilty and gone to trial.
See Sanchez v. United States, 50 F.3d at 1454; Banks v. United States, 920 F. Supp.
688, 692 (E.D. Va. 1996) (noting that Second, Sixth, Eighth, and Ninth Circuit
Courts of Appeal have adopted such a view).5
The overriding theme of the Brady cases is the emphasis the
Supreme Court has placed on the prosecutor's responsibility for fair play. In
close cases, "the prudent prosecutor will resolve doubtful questions in favor of
disclosure. This is as it should be. Such disclosures will serve to justify trust in
4 A defendant who alleges a Brady violation in the first category, the
prosecutor's use of perjured testimony, must clear a lower hurdle in proving
materiality. In such situations, "a conviction obtained by the knowing use of
perjured testimony is fundamentally unfair, and must be set aside if there is any
reasonable likelihood that the false testimony could have affected the outcome
of the jury." United States v. Bagle, 473 U.S. at 678, 105 S.Ct. at 3381-82, 87
L.Ed.2d at 492. That category is not at issue in Gibson's case.
5 The Sanchez standard also is similar to the ordinary PCR standard for
determining whether a guilty plea should be set aside due to the ineffective
assistance of counsel. E.g., Alexander v. State, 303 S.C. 539, 402 S.E.2d 484
(1991) (where there has been a guilty plea, the applicant must prove counsel's
representation fell below the standard of reasonableness and, but for counsel's
unprofessional errors, there is a reasonable probability he would not have
pleaded guilty and would have insisted on going to trial) (citing Hill v. Lockhart,
474 U.S. 52~ 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).
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GIBSON v. STATE
the prosecutor as the representative . . . of a sovereignty . . . whose interest . . .
in a criminal prosecution is not that it shall win a case, but that justice shall be
done. And it will tend to preserve the criminal trial, as distinct from the
prosecutor's private deliberations, as the chosen forum for ascertaining the truth
about criminal accusations." Kyles v. Whitley, 514 U.S. at -, 115 S.Ct. at
1568, 131 L.Ed.2d at 509 (quotes omitted) (citing Berger v. United States, 295
U.S. 78) 88) 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)).
We hold the PCR judge correctly ruled that the prosecutor violated
Brady by failing to disclose fully the change in Ross's testimony and the on-the
scene confrontation. See Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989)
(appellate court must affirm PCR judge's findings when they are supported by
any evidence of probative value).
The record reveals that the prosecutor told Gibson's attorney that
Ross could not have seen what she claimed, i.e., that Gibson pointed the gun at
the victim and fired. The investigating officers told Gibson's attorney they had
reached the same conclusion. Gibson knew his attorney believed he could
impeach Ross's testimony.
Neither the prosecutor nor the detectives, however, disclosed to
Gibson that Ross had changed her statement to say that, even if she had not
seen the shooting from the window, she must have seen it through the door. Nor
did they reveal the on-the-scene confrontation that prompted Ross to change her
previous statement.
In applying the Brady analysis, first, the withheld evidence was
favorable to Gibson because it was additional proof of Ross's alleged lies.
Second, the evidence was in the possession of and known to the prosecutor.
Third, the prosecutor suppressed the evidence by failing to reveal it.
Finally, as to the prong upon which Brady violations often rise or
fall, we agree with the PCR judge's ruling that the withheld evidence was
material. It is reasonably probable that, had the prosecutor revealed the
suppressed information, Gibson would have chosen to stand trial instead of
pleading guilty. Instead of merely hoping he could impeach Ross as a liar,
Gibson would have known about Ross's inconsistent statements and the
revealing on-the-scene confrontation. He likely could have challenged the
prosecutor's effort to put her on the stand as the impermissible solicitation of
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GIBSON v. STATE
perjured testimony. Compare Banks v. United States, 920 F. Supp. at 691-93
(finding it was reasonably probable that defendant would have stood trial if he
had known the government's key witness had enjoyed conjugal visits with his
wife and girlfriend in government offices) with United States v. Avellino, 136
F.3d at 254-59 (finding it was not reasonably probable that defendant would
have stood trial if prosecutors had given him additional undisclosed evidence
about informant's narcotics trafficking, where prosecutors already had turned
over extensive information about informant's atrocious criminal record that
included nine murders, narcotics offenses, extortion, hijacking, and burglary).
We also agree with the PCR judge's ruling that the information
actually provided, the prosecutor's conclusion that Ross could not have seen
what she claimed, was of little help to Gibson. That conclusion inherently lacked
exculpatory or impeachment value because it was not admissible at trial. The
Brady analysis focuses upon facts known to the State, not the prosecutor's
conclusions.
2. PROSECUTORIAL MISCONDUCT
Gibson contends the PCR judge erred in ruling that, although the
prosecutor committed a Brady violation, he did not commit misconduct. The
prosecutor described Ross's potential testimony, which he knew to be a lie, to the
judge at the guilty plea without revealing his reservations about Ross's veracity,
his visit to the scene with her, or inconsistencies in her statements, Gibson
asserts. Any use of Ross's testimony at trial would have constituted a use of
perjured testimony in violation of ethical rules, Gibson argues.
As explained above, the prosecutor committed a Brady violation by
not disclosing certain evidence to Gibson. A Brady violation is one type of
prosecutorial misconduct. It is misconduct of a different type than, for instance,
an attempt to introduce inadmissible evidence, tamper with the jury, or some
other inappropriate action. E.g., United States v. Alderdyce, 787 F.2d 1365,
1370 (9th Cir. 1986) (finding no evidence of prosecutorial misconduct giving rise
to a Brady violation); Buffington v. Copeland, 687 F. Supp. 1089, 1095-96 (W.D.
Tex. 1988) (distinguishing Brady violations from other types of prosecutorial
misconduct in which, for example, a prosecutor tries to inject prejudice into a
trial by introducing inadmissible evidence or making inappropriate opening
statements or closing arguments).
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GIBSON v. STATE
It does not matter whether the prosecutor's misconduct in failing to
reveal Brady evidence is due to negligence or an intentional act because a court
may find a Brady violation irrespective of the good faith or bad faith of the
prosecutor. "Brady is based on a sense of fairness, and a belief that society gains
when a defendant is accorded a fair trial. The focus is not on the misconduct of
the Prosecutor, but on the fairness of the procedure." New York v. Jackson, 593
N.Y. S. 2 d 410, 417 (N.Y. Sup. Ct. 1992). As the Supreme Court explained in
Brady, "[t]he principle . . . is not punishment of society for misdeeds of a
prosecutor but avoidance of an unfair trial to the accused. Society wins not only
when the guilty are convicted but when criminal trials are fair[.]" Brady, 373
U.S. at 87, 83 S.Ct. at 1197, 10 L.Ed.2d at 218. "If the suppression of evidence
results in constitutional error, it is because of the character of the evidence, not
the character of the prosecutor." United States v. Agurs, 427 U.S. at 110, 96
S.Ct. at 2401, 49 L.Ed.2d at 353.
The PCR judge's ruling in this, case is inconsistent because the
prosecutor committed misconduct by violating Brady. Accordingly, we reverse
the judge's ruling on this issue.6 We note that when a Brady violation is found,
it is unnecessary for the judge to make an additional ruling on prosecutorial
misconduct unless the prosecutor engaged in other types of misconduct not
related to the Brady violation.
CONCLUSION
We affirm the PCR judge's decision to set aside Gibson's guilty plea
and grant him a new trial based on the Brady violation. We reverse the PCR
judge's erroneous ruling on the issue of prosecutorial misconduct.
AFFIRMED IN PART; REVERSED IN PART.
FINNEY, C.J., TOAL, MOORE, and BURNETT, ii., concur.
6 Our use of the term "misconduct" in the context of a Brady violation is
not necessarily synonymous with misconduct as defined in various ethical rules
that govern lawyers. See the Rules of Professional Conduct contained in Rule
407, SCACR. The focus of the Brady analysis is upon the fairness of the
procedure followed in a particular case. The focus of the ethical rules is upon a
lawyer's alleged misconduct, an issue that is not before us.
p.22