Catala v. State

SALMON, J. A jury in the Circuit Court for Cecil County found Ramon Catala (Catala) guilty of sixteen traffic charges, all arising out of a highspeed police chase that occurred on March 10, 2004. Immediately after the jury announced its verdict, Michael Halter, Esq., trial counsel for Catala, asked that the jury be polled. All twelve jurors were polled, and they unanimously reaffirmed that they had found appellant guilty of all charges. Mr. Halter then asked the trial judge to permit his client to remain free on $7,500 bond.

The court granted counsel’s request. The court next discussed an appropriate date for sentencing, and the following transpired: ⁴⁴³ MR. HALTER: Just to advise the court for the record, Your Honor, Mr. Eastridge [State’s Attorney for Cecil County] is well aware, and I have advised my client I begin working for the State’s Attorney’s office on the 14th of this month [i.e., 12 days later]. THE COURT: You do what?

MR. HALTER: I begin working for the State’s Attorney’s office on the 14th of this month. I have advised my client of that. He’s aware we will probably be doing substitution of counsel.

So I will not be counsel at the sentencing. THE COURT: All right. You are joining in the State’s Attorney’s office? MR.

HALTER: Yes, Your Honor. THE COURT: All right. You are aware of that, sir? THE DEFENDANT: Yes, sir.

THE COURT: And at the time of disposition you can engage other counsel. Can you get another lawyer? THE DEFENDANT: I’m going to get another lawyer, Your Honor. THE COURT: For disposition?

THE DEFENDANT: I am. And I was going to say— because I’m not guilty, Your Honor. And the guy that was driving the car, he was supposed to come here today with me, and I couldn’t get ahold of him. THE COURT: Well, that’s all very interesting.

It’s also academic. You have been through a trial. You were found guilty. And that’s— THE DEFENDANT: And, Your Honor, on the evidence they were charging me—on what evidence are they charging [sic] me guilty?

THE COURT: The only thing I stopped doing fourteen years ago when I went on the bench was giving legal advice. You have got to talk to your attorney. As far as I’m concerned, the trial is finished except for the sentencing aspect. ⁴⁴⁴ THE DEFENDANT: Thank you, Your Honor. On September 14, 2004, Mr. Halter filed a motion to withdraw as counsel for Catala.

According to the motion, prior to trial, on August 12, 2004, Mr. Halter advised Catala at a “criminal motions hearing/status conference” that he had “accepted a position with the Maryland Office of the State’s Attorney in and for Cecil County.” Movant also said in his motion that he advised the defendant “that if for any reason any portion of the proceedings in this matter were to be scheduled later than September 24, 2004,” 1 he would be “forced to withdraw his appearance in this matter due to a conflict of interest.” Mr. Halter also said in his withdrawal motion that he gave the defendant “the option of retaining other counsel on August 12, 2004,” which was sixteen days before trial was set to commence. Counsel’s motion to withdraw also represented that the defendant, when he learned of his counsel’s future employment plans, stated that “he wished for ... [Mr. Halter] to continue to represent him as long as he was able.” Mr. Halter concluded the motion by saying that he was “slated to begin” his new position on September 15, 2004, and that he would “obviously be unable to continue in this case because of the conflict of interest.” The Circuit Court for Cecil County, on October 6, 2004, granted Mr. Halter’s motion to withdraw as counsel. On October 21, 2004, Catala appeared at the sentencing hearing without counsel. The following exchange then occurred: THE DEFENDANT: All right.

The thing is, I’ve been trying to look for a good counsel because I did not feel comfortable with my last counsel. So I’m asking—I’ve been coming to court at the time I’m supposed to come. And though people saw that I made a mistake, I’m still 100 ⁴⁴⁵ percent that it was not me and they still found me guilty, Your Honor. THE COURT: Sir, you have had a two-day jury trial.

THE DEFENDANT: I know. THE COURT: Lots of people gave up their time to sit and listen to your case. There were a lot of witnesses. Those 12 people found you guilty beyond a reasonable doubt of being involved in these cases, some 13 [sic] different motor vehicle violations, two of which can put you in jail.

The rest are fíneable offenses. But fleeing and eluding on foot and fleeing and eluding by motor vehicle at speeds up to 130 miles per hour, smoking [sic] the police car and acting in an abhorrent way, outrageous driving behavior is what they found you guilty of. THE DEFENDANT: The thing is, Your Honor— THE COURT: Now, that’s been months ago. That day your attorney told you in open court on the record that he was going to the State’s Attorney’s Office and could not be present to represent you in your sentencing.

THE DEFENDANT: In my sentencing, I know that. THE COURT: You nodded, you agreed, and told the court that you would be getting your own attorney. THE DEFENDANT: But I— THE COURT: You’re here without counsel. You don’t have an absolute 'right to counsel at sentencing like you do at the time of the guilt or innocence phase of the case.

So you’re here today for sentencing. Your request for a postponement is denied. Now, have you talked to— THE DEFENDANT: I haven’t talked to no [sic] counsel. THE COURT: I’m not talking about that.

You had an attorney. You haven’t talked to anybody. You’ve had plenty of time. You’ve made no efforts to get counsel; is that correct?

THE DEFENDANT: I made efforts, Your Honor. I made efforts, but I did not feel comfortable with speaking to them. I didn’t feel because— ⁴⁴⁶ THE COURT: Well, did you go to the public defender? THE DEFENDANT: No. THE COURT: No. Okay.

(Emphasis added.) There was no further discussion in regard to Catala’s lack of representation. The court then segued to a discussion about whether appellant needed an interpreter. After that discussion, a Spanish-speaking interpreter was appointed. The court next considered the State’s sentencing recommendations.

The court, after giving Catala a chance to allocute, sentenced him to a total of two years’ imprisonment with all suspended but ninety days. The court also imposed a fine of $7,500. Catala filed this timely appeal and raises two questions: 1. Did the trial court err when, after receiving timely notice of a conflict of interest between Catala and his trial counsel, it failed to make any meaningful inquiry into the conflict or into whether the defendant knowingly and voluntarily waived his right to conflict-free counsel? 2.

Did the tidal court err when, after stating that Catala did not have a right to counsel at sentencing, it refused to grant a continuance so that the defendant could find sentencing counsel? I. THE TRIAL Appellant’s trial took place on September 2 and 3, 2004. The sole contested issue was whether appellant was driving the car involved in the highspeed chase. As shown below, the State introduced evidence, which, if believed, showed that appellant was the driver.

Appellant, however, testified that he was simply a passenger in the vehicle involved in the chase and that the car was driven by one Rafael Paulhino. ⁴⁴⁷ A. The State’s Evidence On March 10, 2004, at approximately 1:10 p.m., Maryland Slate Trooper Christopher Connor clocked a Nissan Maxima doing 72 miles per hour in a 65-mile-per-hour speed zone. Trooper Connor pulled the Nissan over to the shoulder of I-95, then got out of his marked police car and approached the Maxima. As he was walking toward the vehicle, the officer looked through the rear window of the Nissan and noticed that the driver was wearing a collared shirt. He also noticed, by looking at the passenger side mirror, that the front-seat passenger was wearing a crew-neck shirt with no collar.

Additionally, he observed that both occupants of the vehicle had shaved heads. Before Trooper Connor could talk to the driver, the Nissan Maxima sped away. Trooper Connor ran to his patrol car, activated all of his emergency equipment, and gave chase. Most of the chase that followed was videotaped by a camera in Trooper Connor’s police vehicle.

Trooper Connor observed the Nissan cutting in and out of traffic, following cars too closely, passing on the shoulder, and generally operating the motor vehicle in an aggressive and negligent manner. During the chase the Nissan reached speeds in excess of 130 miles per hour on 1-95. The Nissan then left 1-95 and sped down narrow, winding roads in Cecil County. One of the many police officers involved in the chase was Trooper First Class Watkins. 2 Trooper Watkins heard about the highspeed pursuit when he was in Harford County.

He then drove to Route 222, near its intersection with Route 275. When advised that the Nissan was “heading back toward” Route 275, he started moving forward to get a “running start.” When the fleeing Nissan passed his vehicle, the passenger side window was down, and Trooper Watkins had a “clear line of sight of the passenger,” but not the driver. According to Trooper Watkins, Catala “was definitely not the passenger.” ⁴⁴⁸ The chase continued as the Nissan re-entered Route 1-95 and later exited the interstate highway and drove into the truck parking lot at the Chesapeake House Restaurant. Trooper Watkins followed the Nissan into the parking lot.

Although Trooper Watkins did not see the Nissan come to a stop, its tires were still “smoking” when Watkins arrived. Trooper Watkins then saw Catala running away from the driver side of the Nissan. He also saw the passenger getting out of the Nissan on the passenger side. The man exiting the passenger side took “about two steps” and stopped.

He did not appear to Trooper Watkins to be “trying to run.” In contrast, Trooper Watkins saw appellant “running from the driver side of the vehicle” toward the front of the tractor trailers that were parked nearby; appellant next ran across the grassy area and then began “walking quickly forward.” Trooper Watkins got out of his vehicle and apprehended appellant. Appellant was searched incident to his arrest. The police found an ignition key to the Nissan in Catala’s wallet; they also found a large amount of cash in his jacket. After appellant’s apprehension, it was discovered that he had a suspended New York driver’s license.

Trooper Connor testified that at the time of appellant’s arrest Catala was wearing a collared shirt and a tan coat. 3 The person who had exited from the passenger side of the vehicle, however, had a crew-neck shirt with no collar and a “bad arm.” B. Testimony of Appellant Appellant testified that on March 10, 2004, he was a passenger in the Nissan involved in the highspeed chase. The vehicle was driven by Rafael Paulhino. According to Catala’s testimony, during the chase he was “scared” and implored Paulhino on numerous occasions to stop the car. When the ⁴⁴⁹ car was finally stopped by Paulhino, appellant exited the vehicle from the passenger side.

He also saw Paulhino exiting from the same side because the driver side door had been damaged by the Nissan’s collision with one of the pursuit vehicles. Although appellant denied that he ran from the scene, he admitted that he was walking away from the Nissan when apprehended. In his words, he “jumped out of the car because I’m not going to get—I have problems already.” Catala further testified that about five minutes after the vehicle was stopped he voluntarily told Trooper Connor that he had a spare key to the Nissan in his pocket. He said that he told the trooper this because the police were “talking about calling a locksmith” to “get the car” and impound it. 4 He also testified that he told Trooper Connor about the key in his wallet because the trooper was “so mad at me that he didn’t want to listen.” II.

ISSUE 1 In regard to the first issue presented, appellant makes three interrelated contentions, viz., (1) because his trial attorney had accepted a job with the State’s Attorney’s Office for Cecil County while representing him, his attorney had an actual conflict of interest that disqualified him as counsel; (2) the conflict of interest was brought to the trial judge’s attention during trial—yet the trial judge failed to make inquiry regarding that conflict; and (3) therefore, pursuant to the holding by the Supreme Court in Holloway v. Arkansas, 435 U.S. 475 , 98 S.Ct. 1173 , 55 L.Ed.2d 426 (1978), he was entitled to a new trial without the necessity of proving actual prejudice. Under the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights, a defendant in a criminal case is entitled to be ⁴⁵⁰ represented by an attorney who is free from conflicts of interest. See Mickens v. Taylor, 535 U.S. 162 , 122 S.Ct. 1237 , 152 L.Ed.2d 291 (2002); Lettley v. State, 358 Md. 26, 33-34 , 746 A.2d 392 (2000); Austin v. State, 327 Md. 375, 381 , 609 A.2d 728 (1992). The right to effective assistance of counsel in the conflict-free sense has been addressed by the Supreme Court in four significant cases, which, in chronological order, are: Glasser v. United States, 315 U.S. 60 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942); Holloway v. Arkansas, supra; Cuyler v. Sullivan, 446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980); and Mickens, supra.

The first three of these cases were discussed, in detail, by the Court of Appeals in Lettley, 358 Md. at 35-38 , 746 A.2d 392 . The import of Mickens , which was decided two years after Lettley , has not heretofore been addressed by the Court of Appeals. Glasser, along with four co-defendants, was charged with conspiracy to defraud the United States. One of Glasser’s co-defendants was one Kretske. 315 U.S. at 63 , 62 S.Ct. 457 .

On the second day of trial, Kretske dismissed his retained counsel, and the court appointed one of Glasser’s attorney’s (Stewart) to represent him. Prior to the appointment, Stewart told the trial judge about the divergent interests of Glasser and Kretske. Glasser also advised the court that he wanted his own lawyer to represent him. Id. at 69 , 62 S.Ct. 457 .

After some discussion, Stewart agreed to the appointment, and the trial proceeded. Both Kretske and Glasser, along with two other defendants, were convicted. The Supreme Court reversed Glasser’s conviction. Id. at 76 , 62 S.Ct. 457 .

In doing so, the Court agreed with Glasser’s contention that Stewart’s representation of Kretske had prevented Stewart from objecting to certain incompetent evidence and from cross-examining a prosecution witness. Id. The court described these lapses on the part of Stewart as “illuminat[ing] the cross purposes under which he was laboring” and “indicative of Stewart’s struggle to serve two masters.” Id. at 73, 75 , 62 S.Ct. 457 . The reversal of Glasser’s conviction was based on the fact that ⁴⁵¹ counsel’s conflict of interest violated his right to effective assistance of counsel.

Id. at 75 , 62 S.Ct. 457 . In Holloway v. Arkansas, three men were charged with robbery and rape, arising out of an incident that occurred at a Little Rock restaurant. 435 U.S. at 477 , 98 S.Ct. 1173 . A single public defender was assigned to represent all three defendants. Id.

Prior to trial, one of the defendants moved to allow the introduction of a statement he made to officers at the time of his arrest; in that statement, he denied participating in the rapes. The public defender, perceiving a potential conflict of interest, filed a motion for appointment of separate counsel “because ‘the defendants ha[d] stated to him that there is a possibility of a conflict of interest in each of their cases....’ ” Id. at 477 , 98 S.Ct. 1173 . The motion for separate counsel was denied. Id.

Later, on the morning of trial, defense counsel requested a severance “ ‘on the grounds that one or two of the defendants may testify and ... I will not be able to cross-examine them because I have received confidential information from them.’ ” Id. at 478 , 98 S.Ct. 1173 . This motion, too, was denied. After the State rested its case, defense counsel notified the court that all three defendants wished to testify.

Trial counsel once again objected to his representation of all the defendants. The objection was overruled. All three defendants subsequently testified, and all were convicted on all counts. Id. at 481 , 98 S.Ct. 1173 .

After the convictions were affirmed by the Arkansas Supreme Court, the United States Supreme Court granted defendant’s petition for writ of certiorari. The issue presented was whether requiring a single attorney to represent all three men, notwithstanding a timely objection by defense counsel, violated their right to effective assistance of counsel. In Lettley , the Court of Appeals summarized the holding in Holloway as follows: The Court held that this “failure, in the face of the representations made by counsel weeks before trial and again before the jury was empaneled, deprived petitioners of the guarantee of ‘assistance of counsel.’ ” [ 435 U.S. at 484 , 98 S.Ct. 1173 .] Recognizing that joint representation is not ⁴⁵² per se violative of the constitutional guarantee of effective assistance of counsel, the Court nonetheless said that “since the decision in Glasser , most courts have held that an attorney’s request for the appointment of separate counsel, based on his representations as an officer of the court regarding conflict of interests, should be granted.” Id. at 485, 98 S.Ct. 1173 . Turning to the question of proof of prejudice, the Holloway Court concluded that prejudice is presumed, regardless of whether it was shown independently.

See id. at 489, 98 S.Ct. 1173 . The Court “read the Court’s opinion in Glasser ... as holding that whenever a trial court improperly requires joint representation over timely objection reversal is automatic.” Id. at 488, 98 S.Ct. 1173 . The Court recognized that joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing, and that- a rule requiring a defendant to show that a conflict, which he and his counsel tried to avoid by timely objection, prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application. See id. at 490 , 98 S.Ct. 1173 .

Again rejecting a harmless error standard, the Court said: But in a case of joint representation of conflicting interests the evil—it bears repeating—is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some eases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible. Thus an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation. ⁴⁵³ Id. at 490-91 , 98 S.Ct. 1173 .

Lettley, 358 Md. at 36-37 , 746 A.2d 392 (emphasis added). In Cuyler v. Sullivan, John Sullivan and two other men were charged with first-degree murder; all three defendants were represented by the same two privately retained attorneys. 446 U.S. at 338 , 100 S.Ct. 1708 . Each of the defendants was tried separately, and Sullivan, the first to be tried, was convicted of all charges and sentenced to life imprisonment. Id.

Sullivan’s conviction was upheld on direct appeal; he thereafter sought relief under Pennsylvania’s post-conviction hearing act. At the post-conviction hearing, one of Sullivan’s trial attorneys maintained that he and his co-counsel acted jointly in representing two defendants; the other trial counsel claimed, however, that one of the attorneys acted as lead counsel for Sullivan and the other acted in that capacity for the other two defendants. Id. at 338-39 , 100 S.Ct. 1708 . After post-conviction relief was denied, Sullivan sought federal habeas corpus relief in the Eastern District of Pennsylvania.

Id. at 338 , 100 S.Ct. 1708 . The district court denied habeas corpus relief, but the Third Circuit reversed. See United States ex rel. Sullivan v. Cuyler, 593 F.2d 512, 519 (3d Cir.1979).

The Third Circuit held that “[a] state conviction cannot stand when an examination of the record reveals that representation by independent counsel ‘might have made a difference in defense strategy.’ ” Id. at 520-21 . The Supreme Court reversed the decision of the Third Circuit and held: Holloway requires state trial courts to investigate timely objections to multiple representations. But 'nothing in our precedents suggests that the Sixth Amendment requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case. Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.

Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risks of ⁴⁵⁴ conflicts as may exist.... Unless the trial court knows, or reasonably should know, that a particular conflict exists, the court need not initiate an inquiry. 446 U.S. at 846-47 , 100 S.Ct. 1708 (emphasis added) (footnotes omitted). Of particular import to the case at hand, the Cuyler v. Sullivan Court said: “In order to establish a violation of the Sixth Amendment, a defendant who raises no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 348-49 , 100 S.Ct. 1708 (emphasis added) (footnote omitted). The Cuyler Court also said that a trial court must inquire into a conflict of interest when it “knows, or reasonably should know that particular conflict exists.” Id. at 347, 100 S.Ct. 1708 .

Mickens involved the resolution of the question as to what a defendant must prove on appeal in a situation where no objection was raised at trial concerning conflict of interest, even though the trial judge fails to make the inquiry mandated by Cuyler , i.e., the court failed to inquire into a conflict of interest when it “knows or should know that a particular conflict exists.” Mickens was accused of murdering a seventeen-year-old boy named Timothy Hall. 535 U.S. at 164 , 122 S.Ct. 1237 . Prior to his death, Hall had been represented by one Bryan Saunders, Esq., on charges that he had assaulted his mother and possessed concealed weapons. Because of Hall’s death, Saunders was relieved of his obligation of representing Hall by Juvenile Court Judge Aundria Foster. See Mickens v. Taylor, 240 F.3d 348, 354 (4th Cir.2001).

Three days later, Judge Foster assigned Saunders to represent Mickens on the charge that Mickens had murdered Hall. Thereafter, Saunders never advised either the trial judge or Mickens that he had previously represented the murder victim. Mickens was convicted of first-degree murder and given the death penalty. Mickens v. Taylor, 535 U.S. at 164 , 122 S.Ct. 1237 .

Mickens first learned that one of his attorneys had represented the murder victim when another lawyer, who was appointed to represent him in a federal habeas corpus ⁴⁵⁵ proceeding, reviewed Hall’s juvenile file and discovered the dual representation. Mickens then filed a writ of habeas corpus in the Eastern District of Virginia, in which he alleged that he was denied effective assistance of counsel during his trial. See Mickens v. Greene, 74 F.Supp.2d 586 (E.D.Va.1999). The district court judge, without condoning the conduct of Saunders in failing to disclose his previous representation to the trial court, found as a factual matter that Saunders did not believe that he had any continuing duty to Hall that might have interfered with his consideration of all the facts and options available to Mickens.

Under the first part of the test set forth in Cuyler v. Sullivan, the trial court found that there was no actual conflict of interest. Under the second part of the Cuyler v. Sullivan inquiry, the prejudice prong, the district court concluded that Mickens had not been prejudiced by a conflict of interest. The U.S. Court of Appeals for the Fourth Circuit initially reversed the district court’s decision. Mickens v. Taylor, 227 F.3d 203 (4th Cir.2000).

But later, an en banc panel of the Fourth Circuit rejected Mickens’s contention that the Cuyler v. Sullivan case “mandates a reversal when the trial court has failed to make an inquiry even though [the court] ‘knows or reasonably should know that a particular conflict exists.’ ” Mickens v. Taylor, 240 F.3d at 358 n.5. The Supreme Court granted certiorari, 532 U.S. 970 , 121 S.Ct. 1651 , 149 L.Ed.2d 467 (2001), and framed the issue to be decided as follows: “The question presented in this case is what a defendant must show in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or should have known.” 535 U.S. 162, 164 , 122 S.Ct. 1237 , 152 L.Ed.2d 291 (2002). Justice Scalia, speaking for a five-four majority, distinguished between a Holloway v. Arkansas duty to inquire and the type of duty mentioned in Cuyler v. Sullivan. Justice Scalia said for the majority: In Holloway v. Arkansas, 435 U.S. 475 , 98 S.Ct. 1173 , 55 L.Ed.2d 426 (1978), defense counsel had objected that he could not adequately represent the divergent interests of ⁴⁵⁶ three codefendants.

Id., at 478-480 , 98 S.Ct. 1173 . Without inquiry, the trial court had denied counsel’s motions for the appointment of separate counsel and had refused to allow counsel to cross-examine any of the defendants on behalf of the other two. The Holloway Court deferred to the judgment of counsel regarding the existence of a disabling conflict, recognizing that a defense attorney is in the best position to determine when a conflict exists, that he has an ethical obligation to advise the court of any problem, and that his declarations to the court are “virtually made under oath.” Id. at 485-486, 98 S.Ct. 1173 (internal quotation marks omitted). Holloway presumed, moreover, that the conflict, “which [the defendant] and his counsel tried to avoid by timely objections to the joint representation,” id., at 490, 98 S.Ct. 1173 , undermined the adversarial process.

The presumption was justified because joint representation of conflicting interests is inherently suspect, and because counsel’s conflicting obligations to multiple defendants “effectively sea[l] his lips on crucial matters” and make it difficult to measure the precise harm arising from counsel’s errors. Id. at 489-490 , 98 S.Ct. 1173 . Holloway thus creates an automatic reversal rule only where defense counsel is forced to represent codefendants over his timely objection, unless the trial court has determined that there is no conflict. Id., at 488, 98 S.Ct. 1173 (“[Whenever a trial court improperly requires joint representation over timely objection reversal is automatic”).

In Cuyler v. Sullivan, 446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980), the respondent was one of three defendants accused of murder who were tried separately, represented by the same counsel. Neither counsel nor anyone else objected to the multiple representation, and counsel’s opening argument at Sullivan’s trial suggested that the interests of the defendants were aligned. Id., at 347-348 , 100 S.Ct. 1708 . We declined to extend Holloway’s automatic reversal rule to this situation and held that, absent objection, a defendant must demonstrate that “a conflict of interest actually affected the adequacy of his representa ⁴⁵⁷ tion.” 446 U.S. at 348-349 , 100