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State v. Davis


May 26, 2009


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-12-01571.

Per curiam.


Submitted March 11, 2009

Before Judges Rodríguez and Waugh.

Defendant Ronnell Davis appeals his conviction for attempted murder, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. Davis was sentenced to imprisonment for an aggregate of twenty-five years, subject to the eight-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We reverse and remand for a new trial.


We discern the following facts and procedural history from the record.


On October 29, 2004, at approximately 7:30 p.m., Dale Foat was shot twice; once in the head and once in the chest. As a result of the shooting, a portion of his left lung was removed.

On October 30, 2004, Foat identified Davis as the shooter and Albert Snell as being involved in the shooting. After Foat was arrested on unrelated drug charges in November 2004 and released on bail, he recanted his identification, denying that Davis had any involvement in the shooting. He subsequently identified Snell as the shooter.

Davis was indicted on December 14, 2005, and charged with: first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1),(2) (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree witness tampering, N.J.S.A. 2C:28-5(a) (count four). The fourth count related to allegations that Davis had caused Foat to recant his original identification of Davis as the shooter.


The trial commenced on July 18, 2006. There was no forensic evidence tying Davis to the shooting and, as noted, Foat had recanted his statement that Davis shot him. The State presented testimony, including Foat's recorded statement under oath, that Davis shot Foat and that, when Foat was subsequently arrested on unrelated drug charges, Davis arranged for his bail to be posted in exchange for Foat recanting his story and implicating Snell in the shooting. The State called Foat and his bail bondsmen, Robert Ellison, as witnesses at trial, but neither witness implicated Davis in the shooting or supported the State's theory of his involvement in the posting of Foat's bail.

Foat had initially refused to appear as a witness at all, and it was suggested by the State that it would seek to have his sworn statement introduced pursuant to N.J.R.E. 804(a)(2) and (b)(1)(A).*fn1 Ultimately, Foat did appear as a witness, repudiated his earlier statement to the effect that he was shot by Davis, and testified that Snell shot him. The audiotape of the statement implicating Davis was played for the jury pursuant to N.J.R.E. 613 and 803(a).

Prior to the indictment against Davis, Ellison had given the police a sworn statement to the effect that he was approached by Davis, whom he knew as "Love," and asked how much cash would be required to obtain a $50,000 bail bond, but without mentioning Foat. He told "Love" that it would cost $2,500. Shortly thereafter, Foat's relatives came to Ellison's office with $2,500 and arranged for the bail bond. Just before the start of the trial, however, Ellison also recanted his identification of Davis as the "Love" involved with Foat's bail, contending that it had been someone else whom he also knew as "Love."

During his direct examination, the prosecutor asked Ellison if he was providing Davis with favorable testimony because he feared Davis's "reprisals." Ellison responded, "I fear no man." The prosecutor then approached a muscular man wearing a tank top in the audience and asked, "Even a guy with biceps this big?" Defense counsel objected and requested a mistrial.

Counsel then went to sidebar, where the following discussion took place:

[Defense Counsel]: Your Honor, this is the second time that he insinuated that my guy is behind -- first, the first objection I made was when Dale Foat was on the stand and he said Dale Foat is getting pressured by inmates in the jail so that he won't testify against Ronnel Davis.

He just, just so the record reflects, he just walked over to a gentleman that's in the courtroom, has somewhat of a tank top type of shirt or a shirt with the sleeves cut off and just so happens to have big arms. He walked, the prosecutor just walked over to this individual, stood by this individual while the witness Robert Ellison is testifying and insinuated, [] we cannot sugar coat this, that my client has this individual in the courtroom, in the courtroom as a sign of force or some threat to this particular witness.

The, the prosecutor has asked the witness on the stand does he know any individuals in the courtroom. Then he walks over to an individual and says not even this, not even an individual with arms this big.

I'm moving for a mistrial at this particular point. I think the State has clearly violated the rules of evidence, has prejudiced my client, that none of it has anything to do with the charges, what he's charged with in the indictment.

And, your Honor, furthermore, the State is adding things that's not even in evidence into this case. And what I mean by not in evidence, I mean he's bringing in stuff that there is no reports on, an individual sitting in the courtroom. The courtroom is open to everyone. It's a public courtroom.

THE COURT: Let me ask, [prosecutor], do you know who this person is?

[Prosecutor]: Judge, all I know is your sheriff's officer has gone to another person who is currently in this courtroom to tell him not to be staring at witnesses, and we can lay a foundation if you want and put that on the record. I know Officer Eckel told you that happened earlier.

There are a lot of people in this courtroom in the back staring at all the witnesses as they come in, and this one particular individual [has been] here since the morning. He [stated he] was here under oath for Ronnel Davis. Nobody understood what he meant by that, but that's what he said. And he's a big man. He seems to be a weight lifter type because his arms are large and he appears to have a negative influence on all the witnesses here because in my view from what I'm seeing, and I'm not staring at these people because, of course, they're behind me and I'm focusing on the witnesses, but it appears they're trying to intimidate the witnesses.

I'm not saying Mr. Davis is behind that. It might very well be that Mr. Ellison is afraid to be labeled a rat and there are people on the street who are coming in here to make sure he doesn't testify against one of their own so-to-speak.

[Defense Counsel]: Your Honor --[Prosecutor]: And, also, one other thing that I want to put on this record. I didn't ask the court to do this, but the court sealed this courtroom this morning when Mr. Foat was on the stand and the windows were covered with paper so that no one could look inside the courtroom and the doors were locked.

Now, I discovered that well into Mr. Foat's testimony, and I assume the court did that because of security problems that are attending to this trial. And I'll remind your Honor what -- the court what your Honor said at the very beginning. There is something very unusual and suspicious of how people are changing their story and not complying with subpoenas and making all these la[st] minute provisions to --revision to their previous statements prior to trial. Your Honor did say something to that effect.

[Defense Counsel]: Your Honor, that was at a hearing . . . that your Honor conducted, and that is not a part of this case. And there's a serious miscarriage of justice that's being carried out through this trial, your Honor.

Oh, my God, I mean I can't believe it. I mean the State has said that this witness has been looking -- we just opened the courtroom back up just now. . . . This is the only witness, and for him to say that these people are looking at witnesses is crazy, as if to give a sense of threat.

This man is entitled to a fair trial. His family can, if he wants to put each one of the family members on the stand, this is his family, and they're entitled to attend a trial.

[Prosecutor]: Are you suggesting, counsel, the person with the biceps is a family member?

[Defense Counsel]: No, I'm not. [Prosecutor]: Okay, so that's clear.

[Defense Counsel]: No. And just so you understand --

THE COURT: Look, let me get to the heart of this. First of all, I don't remember whether it was that individual because I just don't remember the face, but at nine o'clock this morning or shortly thereafter, an individual came into the courtroom whose name was mentioned by Officer Eckel as Davila.

[Prosecutor]: Same person, your Honor.

THE COURT: [] That individual was making hand signals and said in open court that he was here for Ronnell Davis. Officer Eckel asked him to leave the courtroom and directed him, at which point the man was staring through the window. Officer Eckel went out into the hall, asked the man to step away from the window and stay away from the back entrance to the courtroom. Officer Eckel then placed white paper over the windows.

I don't know who that person is in the back, but that individual that was in the courtroom came back and sat on the other side of the courtroom. Again, but I don't think that it's reasonable to draw any inferences regarding this particular witness. I don't know if he knows this person. So I'm going to strike that question, and I will direct the State not to ask questions if that witness or any other witness threatened him in open court in front of the jury, and the motion for a mistrial is denied.

[Defense Counsel]: Your Honor, just so the damage is done, I just want the record to reflect that, your Honor, my client and I asked the court sheriff's officers to keep that individual out of the courtroom because we thought that was quite bizarre this morning the way that he walked in here. And for the State to go and use him, your Honor, I'm going to ask for a recess at this particular point because I am baffled at the approach that the prosecutor -- the damage is done, your Honor. I don't think that there [is a] curative instruction for what the State has done in this case, and I'm asking the court for a recess and that we convene in a few minutes.

[Prosecutor]: Let me just be very clear about this. There can be no basis for a mistrial. All [I] asked [was] if the witness is intimidated by a man with big biceps sitting in the back. I never said there was a connection to the defendant. Counsel thought the spectator's behavior was bizarre this morning.

We heard from Detective Smith that people are reluctant to testify in the city of New Brunswick because of fear of reprisal.

THE COURT: [Prosecutor], I don't want to bring up the fact that a person is in the back of the room and clearly refer to him as being a source of intimidation to a witness. A lot of people could draw a lot of conclusions which are not appropriate.

The trial judge denied the application for a mistrial and instructed the jury to disregard the prosecutor's question. He further instructed them that:

There is no reason to believe that anyone in this courtroom has done anything with regard to this witness. This witness said he doesn't know who is the person in the courtroom and, therefore, it is totally outside the scope of this trial and it should be disregarded by the jury.

During summation, despite the judge's admonition during the side-bar conference quoted above, the prosecutor again referenced the muscular man in the audience in connection with the possible intimidation of Ellison. Defense counsel objected and again moved for a mistrial.

Here in this courtroom when I asked Robert Ellison are you afraid of reprisal, he said I'm not afraid of anyone. And then that's when I stood back here next to a guy who came into this courtroom --

[Defense Counsel]: Objection, your Honor.

[Prosecutor]: --in a muscle tee shirt.

THE COURT: Excuse me, [Prosecutor], I've excluded that.

[Prosecutor]: Judge, it's part of the evidence.

[Defense Counsel]: No, and that was stricken testimony, your Honor.

THE COURT: Side bar. (The following is heard at side bar:)

[Defense Counsel]: Your Honor, I am moving for a mistrial. Clearly we objected to that when the State did it at the time. The court instructed the jury to disregard it. It wasn't placed into evidence. The State again has done that, your Honor, and he's making references to something that your Honor specifically instructed the jury on.

I think that is highly prejudicial to my client, your Honor, and I don't think he can get a fair trial at this time because, you know, the State, what the State just did, he has simply disregarded a ruling of the court and he has made reference to --strike that. But he has done this, your Honor, and that, I have to submit to the court, that is clearly prejudicial to my client, and there's no way my client can get a fair trial.

THE COURT: I did exclude that.

[Prosecutor]: Judge, I didn't recall you excluded that.

THE COURT: And I instructed the jury not to take that into account. I do know that particular person was making signs when the witness [Foat] was on the stand, and I excused the jury and excluded him from the courtroom. So perhaps there was a mix-up.

Motion denied.

[Prosecutor]: Judge, I totally do not recall the court excluding the exchange I had with the witness, but I accept it and I will stay away from it.

[Defense Counsel]: Well, your Honor.

[Prosecutor]: The subject with the man with the biceps.

[Defense Counsel]: I'm going to ask the court to instruct the jury to totally disregard the comment by the prosecutor, that, that at the time that that was done it was stricken by the court and the jury was instructed to disregard that.

Just so they understand that they can in no way, and I know your Honor is going to tell them that nothing we say is considered to be evidence, but just so the record is clear that they understand that they can in no way consider that comment by the prosecutor.

[Prosecutor]: Judge, maybe you're going to want to think about that. I don't know if counsel wants you to highlight it. I don't know if you want the instruction now.

[Defense Counsel]: Certainly I want it done right now. It was just done.

THE COURT: I will caution the jury.

The trial judge again instructed the jury to disregard what the prosecutor had said.

On July 27, 2006, the jury returned a guilty verdict on the first three counts, but found Davis not guilty as to count four, the witness tampering charge.


On August 1, 2006, the assistant prosecutor who tried the case wrote to the trial judge and defense counsel, outlining potential misconduct by Juror #3 during Davis's trial. During voir dire, Juror #3 had remained silent when asked if she knew any law enforcement personnel. The assistant prosecutor had just learned that Juror #3 was a paralegal who had worked with another assistant prosecutor when he was in private practice.

According to the August 1 letter, that assistant prosecutor told the trial prosecutor that his relationship with the juror was purely "professional" and they had no contact "outside the office on either a social or personal basis." However, during Davis's trial, on July 25, 2006, Juror #3 visited the Prosecutor's Office and asked to see her former co-worker. When told he was not in the office at the time, she left him a note which read: "I came to visit you. I thought you didn't eat lunch. I'm on jury duty across the street. Sorry I missed you."

The assistant prosecutor attempted to call Juror #3 at work on July 26, 2006, but was advised that she was still on jury duty. He called her again at work on July 28, 2006, and was able to speak with her. She told him that "she had been a juror on a criminal case, and that the case resulted in a guilty verdict. [Juror #3] asked [the assistant prosecutor] what the sentence was for attempted murder, and he replied that he would have to check and would let her know."

On July 31, 2006, the assistant prosecutor informed the trial prosecutor that he knew one of the jurors at Davis's trial. The trial prosecutor "realized that [Juror #3] had not disclosed during voir dire her former working relationship with [his colleague]. [He] instructed [his colleague] to have no further contact with [Juror #3]." He asserted in his August 1 letter that Juror #3's conduct and acquaintance with the other assistant prosecutor did not affect "her ability to function as a fair and impartial juror."

Davis moved for a new trial based on both juror and prosecutorial misconduct. It appears from the record that the juror in question was not questioned by the trial court as to why she did not identify the assistant prosecutor as someone she knew or why she tried to visit him during the trial. Oral arguments were heard on the motion January 17, 2007. The trial judge denied Davis's motion and proceeded to sentencing.

The judge granted the State's motion for an extended term under N.J.S.A. 2C:44-3(a) and found aggravating factors three, six, and nine and no mitigating factors. N.J.S.A. 2C:44-1. Davis was sentenced to a term of twenty-five years of imprisonment, subject to NERA for count one; a concurrent four-year term for count two; and a concurrent seven-year term for count three, as well as applicable fines.*fn2

This appeal followed. Davis moved before this court on March 12, 2009, to file a pro se supplemental brief. We denied the motion on March 20, 2009.


The following issues were raised in Davis's original brief to this court:




In Point I, Davis argues that he was denied a fair trial because Juror #3 failed to disclose her relationship with the assistant prosecutor and then visited the Prosecutor's Office during his trial. We agree that the juror's conduct raises serious concerns as to the impartiality of the jury at Davis's trial.

Where a juror on voir dire fails to disclose potentially prejudicial material, such as that involved in this case, a party may be regarded as having been denied [a] fair trial. This is not necessarily because of any actual or provable prejudice to his case attributable to such juror, but rather because of his loss, by reason of that failure of disclosure, of the opportunity to have excused the juror by appropriate challenge, thus assuring with maximum possible certainty that he be judged fairly by an impartial jury.

[State v. Cooper, 151 N.J. 326, 349 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed. 2d 681 (2000) (quoting In re Kozlov, 79 N.J. 232, 239 (1979)).]

However, "[a]bsent an affirmative showing that a litigant would have exercised a peremptory challenge to exclude a juror, the voir dire omission is harmless." Id. at 350.

Davis argues that he "would have absolutely exercised one of his peremptory challenges in removing Juror #3." At the motion hearing, the trial judge disagreed with that argument, observing that Davis failed to exercise his peremptory challenges with other jurors who had a connection to law enforcement. The trial judge noted that Davis did not use peremptory challenges against: (1) Juror #2, whose good friend was a State Trooper; (2) Juror #6, who knew one police officer; (3) Juror #9, whose cousin is a State Trooper; (4) Juror #11, whose mother's friend is a police officer; and (5) Juror #14, whose sister-in-law's brother is a police officer.

The trial judge did note, however, that Davis used a peremptory challenge against Juror #10, who was the cousin of the First Assistant Prosecutor. The trial judge dismissed the importance of this challenge by noting that: "Anyone who's a relative of a high ranking Assistant Prosecutor would, I'm sure, have been challenged by any qualified defense attorney."

We recognize that Davis has not made a clear affirmative showing that he would have used a peremptory challenge against Juror #3. Nevertheless, while Davis did not use a peremptory challenge against all potential jurors who had either tenuous or more significant relationships with law enforcement, Davis did use a peremptory challenge against the only individual who identified herself as a relative or friend of an employee of the Prosecutor's Office.

In State v. Thompson, 142 N.J. Super. 274 (App. Div. 1976), we reversed defendant's conviction and remanded for a new trial under similar circumstances, largely because there was no voir dire of the juror so that the trial judge could assess the situation with a full record. In Thompson, a juror failed to disclose that he worked as a corrections officer when directly asked if he was currently, or ever, employed in law enforcement. Id. at 278-79. "The trial judge, in denying a new trial, based his determination on a finding that the juror's failure to respond to the question in light of his employment and current participation as a juvenile counselor was probably the result of misunderstanding or inadvertence." Id. at 279 (emphasis added). The trial judge found that the lack of "deliberate deception" eliminated any possibility of juror bias. Ibid.

In the present case, Juror #3's omission was not as blatant as that of the juror in Thompson, in that she herself had not worked for law enforcement but was acquainted with someone who did. However, the trial judge in this case reached factual conclusions similar to those of the judge in Thompson, without a voir dire of the juror. In denying the motion for a new trial, the trial judge stated:

[U]nder the circumstances of this case I don't believe that [Juror #3]'s answer was inaccurate in any way or misinformed the Court or misled anyone in any way. I don't believe that either she considered herself a friend of [the assistant prosecutor] or even if she were a friend, that he was encompassed in law enforcement. That's usually considered to be policemen or the like, State Troopers.

We find it difficult to understand how the juror could have considered the assistant prosecutor not to be a "friend" when she made an effort to visit him during the trial. Because the juror was never questioned, the record sheds no light on that issue.

In both Thompson and the present case, these conclusions were reached without questioning any member of the jury.

Manifestly, a finding either way on any of these fact issues could only be made after a full inquiry of not only the affected juror but all the members of the jury panel. . . . In any event, the judge proceeded without an evidentiary hearing to make the negative findings outlined above . . . . [Ibid.]

See also State v. Scherzer, 301 N.J. Super. 363, 488 (App. Div.), certif. denied, 151 N.J. 466 (1997) ("Although the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review.").

Compounding the potential prejudice resulting from the omission during voir dire is Juror #3's disregard for the trial judge's instructions. During his preliminary instructions to the jury, the trial judge stated:

[D]uring the trial you're not to speak or associate with the attorneys, the witnesses or the defendant, Mr. Davis, nor are they permitted to speak or associate with you. This should not be taken as rudeness but as a way to ensure fairness to both sides. . . .

I can't monitor you about not speaking to anyone about the case or reading any reports. I leave it to your fairness, your judgment and your faith to your oath as jurors.

Juror #3 disregarded this instruction and visited the Prosecutor's Office in an attempt to speak to the assistant prosecutor who was her former co-worker. While he was not assigned to Davis's case and she was initially unsuccessful in contacting him, her actions nonetheless create a strong appearance of impropriety.

We will not overturn the discretionary decision of a trial court unless a clear abuse of discretion is shown. State v. Levitt, 36 N.J. 266, 272 (1961) ("Motions for a new trial are addressed to the sound discretion of the court; and the exercise of the discretion will not be interfered with on appeal unless a clear abuse of it is shown." (internal quotation marks and citation omitted)). Because the trial judge failed to engage in any type of fact-finding process as to the reasons, if any, behind Juror #3's initial failure to identify the assistant prosecutor during voir dire, especially in light of her subsequent decision to make a visit to him during the trial, and any bias resulting from her connection with the Prosecutor's Office, we conclude that those unexplained events cast serious doubt on whether Davis was afforded his "fundamental right of trial by a fair and impartial jury." Thompson, supra, 142 N.J. at 281 (quoting Wright v. Bernstein, 23 N.J. 284, 294 (1957)).

We need not decide whether the issues related to Juror #3, "standing alone," would call for reversal because we consider it along with Davis's second argument discussed below. In the "aggregate," we conclude that the two together "clearly deprived the defendant of the type of trial upon which our system of criminal justice soundly insists." State v. Orecchio, 16 N.J. 125, 134 (1954).


In Point II, Davis challenges the statements made by the prosecutor, both during his questioning of Ellison and in his summation, that someone in the courtroom was seeking to intimidate Ellison. The State argues that no harm was done because the jury was instructed to disregard the prosecutor's statements and that there was ample evidence, presented to the trial judge at sidebar, that someone was attempting to intimidate Ellison. We also note that Davis was, in fact, acquitted of the tampering count.

During his direct examination of Ellison, the prosecutor walked into the public seating area of the courtroom and clearly implied that a muscular man wearing a tank top who was seated there was intimidating Ellison. Upon Davis's request for a mistrial, the trial judge instructed the jury to disregard the prosecutor's statements. He also directed the prosecutor "not to ask questions if that witness or any other witness threatened him in open court in front of the jury." During summation, however, the prosecutor, who claimed not to have remembered that the issue had been excluded, again suggested that Ellison was being intimidated by the muscular man in the gallery. Davis again moved for a mistrial, which was denied. The trial judge again instructed the jury to disregard the prosecutor's statements.

We find that the statements of the prosecutor were the equivalent of testimony that the muscular man was, in fact, intimidating Ellison. See State v. Farrell, 61 N.J. 99, 102-03 (1972) ("These comments were the equivalent of testimony by the prosecutor that the defendant had procured the presence of these men for the purpose of intimidating a State witness and therefore was a party in an attempt to obstruct justice.").*fn3

"[A] prosecutor's closing argument must be limited to the facts in evidence and inferences reasonably to be drawn therefrom." State v. Bey, 129 N.J. 557, 620 (1992). There was nothing presented in the record to suggest that the muscular man in the audience was in any way connected to Davis or intimidating Ellison. At sidebar, it was revealed that, when the man came into the courtroom earlier in the day, he stated to a sheriff's officer that he was there "under oath for Ronnell Davis." However, Ellison testified that he did not recognize anyone in the courtroom and that he "fear[ed] no man."

To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted). Indeed, the Supreme Court has recognized that "criminal trials create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)).

In the present case, the prosecutor not only provided inappropriate testimony during Ellison's direct examination, but again made similar statements during summation despite an admonition from the trial judge following his initial impropriety. While the trial judge did provide a curative instruction following both missteps by the prosecutor, considering the record as a whole, including the issues raised with respect to Juror #3, this simply was not sufficient to remedy the error.

There was no forensic evidence presented to incriminate Davis. The State's entire case rested on the prior statements of Foat and Ellison, and the theory that neither of them would testify truthfully because they feared reprisal by Davis or someone else. Because the case depended almost entirely on whether the jury believed the State's intimidation theory, we "conclude that the inappropriate comments made by the prosecutor could have improperly swayed the jury and denied defendant a fair trial." State v. Smith, 167 N.J. 158, 188 (2001) ("Because defendant's guilt or innocence depended on whether the jury believed the [] witnesses, the prosecutor's comments clearly were capable of having an unfair impact on the jury's deliberations, thereby depriving defendant of a fair trial.").


In conclusion, we find that, taken in the aggregate, the errors discussed above deprived Davis of his fundamental right to a fair trial. Orecchio, supra, 16 N.J. at 134. Consequently, we reverse Davis's conviction and remand the matter for a new trial on counts one through three.

Reversed and remanded.

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