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State v. Basil

July 20, 2010

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
EUGENE BASIL, A/K/A JEAN BASIL, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

ALBIN, J. delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Part III, joined by JUSTICES LaVECCHIA and WALLACE.

The issues before the Court are: 1) whether the police had probable cause to arrest defendant, Eugene Basil; and 2) whether the admission of an out-of-court statement at trial violated defendant's right of confrontation guaranteed by the Sixth Amendment to the United States Constitution.

Defendant was charged by a Hudson County grand jury in a two-count indictment with second-degree possession of a shotgun with the purpose to use it unlawfully against a person or property of another, N.J.S.A. 2C:39-4(a), and third-degree knowingly possessing the shotgun without having first obtained a firearm purchaser identification card, N.J.S.A. 2C:39-5(c)(1). In a pre-trial motion, defendant claimed that the police did not have probable cause to arrest him and, therefore, subjected him to an unreasonable seizure in violation of his constitutional rights. He sought to suppress an incriminating statement he allegedly made after he was taken into custody. At the suppression hearing, Officer Anthony Ruocco of the Jersey City Police Department testified that on February 12, 2005, at approximately 1:00 a.m., he and Officer William Sullivan, as well as other police units, responded to a report of a man with a shotgun at 199 Bidwell Avenue. Upon arrival at the scene, Office Ruocco observed several black males, including defendant, in the area of 199 Bidwell Avenue. He was approached by a young black woman who looked to be eighteen- or nineteen-years old and "came from around the corner." The woman told Officer Ruocco that defendant had pointed a shotgun in her direction and had uttered words to the effect of, "Get off the corner." The woman also stated that she saw defendant throw the shotgun underneath a black Cadillac. Officer Ruocco testified that as she spoke to him, the woman was shaking a bit and her voice was elevated. Officer Sullivan, along with Officer Mecca, recovered the shotgun from underneath the Cadillac. Officers approached and questioned defendant about the report of the shotgun. Following the young woman's statement and the discovery of the shotgun, defendant was placed in the back of a police car.

The young woman told Officer Ruocco that she lived in the area but nothing else about herself. She said that she did not want to become involved in the case "because she was scared for her safety." The young woman left the scene; Officer Ruocco did not get her name, address, or telephone number. Officer Ruocco transported defendant in the back seat of a patrol car to the district police station. Officer Ruocco did not consider defendant to be under arrest at that point, however, if defendant had refused to go, the officer would have placed him under arrest for obstruction. Once inside the station, defendant made the following comment to Officer Ruocco: "What the problem, you guys don't do your job. So I went inside and got my shotgun." At that point, Officer Ruocco placed defendant under arrest, handcuffed him, and gave him the Miranda warnings.

Defendant also testified at the suppression hearing, presenting a different version than the one described by both the female witness and Officer Ruocco. Defendant said that on the night in question he was involved in activities related to his grandmother's funeral and on that evening he had brought food to his house at 204 Bidwell Ave. where family and friends were gathering. At the time the police arrived, he was standing outside his home. Defendant denied possessing the shotgun found under the Cadillac, pointing the weapon at anyone, or making the incriminating statement attributed to him by Officer Ruocco.

The court found Officer Ruocco's credibility to be "excellent," and concluded that the police engaged in a lawful investigative detention based on the statement of the citizen informant and the discovery of the shotgun. The court denied the motion to suppress defendant's incriminating statement, finding that, based on defendant's "spontaneous admission to possessing the shotgun, the police had probable cause to arrest him."

The matter proceeded to trial. Defendant challenged the admissibility of the non-appearing woman's statement to Officer Ruocco -- identifying him as the person wielding the shotgun -- on hearsay and confrontational grounds. The court determined that the statement was admissible under the excited-utterance exception to the hearsay rule, N.J.R.E. 803(c) (2). The State presented three witnesses. Officer Ruocco stated that he and Officer Sullivan were dispatched to the area of 199 Bidwell Avenue in Jersey City on the report of a man with a shotgun. On their arrival, defendant was standing in front of 199 Bidwell Avenue. While Officer Sullivan "was holding [defendant]," Officer Ruocco was approached by an eighteen- or nineteen-year-old black woman who "came from around the corner." She told the Officer that she was standing on the corner (apparently with others) when defendant "pointed a shotgun at their direction and stated get off the corner." She also "stated that the shotgun was thrown under a black Cadillac." The rest of Officer Ruocco's testimony was essentially consistent with his testimony at the suppression hearing.

Officer Sullivan gave a somewhat different account of the events. He testified that after he and Officer Ruocco arrived at the scene, a black female walked across the street and approached them. She said, "[T]hat's him," pointing to defendant, "he's the one with the gun." The two officers then told defendant to halt, and he replied, "What do you want me for?" Simultaneously, the woman advised the officers that the gun was underneath a black Cadillac. With Officer Ruocco in control of defendant about ten feet from the Cadillac, and with the arrival of another police car, Officer Sullivan retrieved the unloaded shotgun from underneath the car. According to Officer Sullivan, the woman stated that she did not want to be a witness and, therefore, he did not get her name. Fearing that people on the street would become disruptive, Officers Sullivan and Ruocco immediately transported defendant to the police station. Officer Sullivan stated that the shotgun was not dusted for fingerprints because of defendant's reported admission to Officer Ruocco. Officer Sullivan also testified that in his presence defendant denied owning or having anything to do with the shotgun. Detective Daniel Diaz of the Hudson County Prosecutor's Office testified that the shotgun recovered under the Cadillac was operable. Defendant presented two witnesses; both were friends who testified that they had been with defendant earlier in the day because of his grandmother's funeral, had been with him while on the corner of Bidwell Avenue, and never saw him in possession of a shotgun. At the conclusion of trial, the jury found defendant guilty of third-degree knowingly possessing a shotgun without first having obtained a firearm's purchaser identification card. The trial court sentenced defendant to an extended term of imprisonment, imposing a ten-year term with a five-year period of parole ineligibility.

The Appellate Division reversed defendant's conviction, finding two separate grounds of error. First, the appellate panel determined that, for the purposes of the Fourth Amendment, the warrantless detention of defendant, near his home, was the equivalent of an arrest and had to be supported by probable cause. Relying largely on the United States Supreme Court case Florida v. J.L., the panel found that the woman's accusations that defendant had pointed a shotgun at her, even though corroborated by the discovery of the gun where she said it was discarded, did not satisfy the constitutional standard for probable cause. The court concluded that there was "no reason to believe" that the woman, who refused to identify herself, was speaking the truth." Having reasoned the defendant was unlawfully seized by the police, the panel then held that his "alleged confession" was a direct result of the unconstitutional seizure and should have been suppressed. The panel also determined that the woman's hearsay statement to Officers Ruocco and Sullivan was introduced in violation of the Confrontation Clause of the Sixth Amendment, as construed by Crawford v. Washington, Davis v. Washington, and this Court's recent decision in State ex rel. J.A. The Appellate Division noted that, under the United States Supreme Court's Confrontation Clause jurisprudence, a testimonial hearsay statement is inadmissible "unless there is a showing that the declarant is unavailable, and that the defendant had a previous opportunity for cross-examination." In particular, the panel held that the woman's hearsay statement was made when the suspect no longer possessed the weapon or posed a danger and "for the purpose of identifying the defendant to the police so that he could be the subject of criminal prosecution." Because the woman's statement constituted the sole remaining evidence of his guilt, the Appellate Division reversed defendant's conviction for unlawful possession of a weapon.

The Supreme Court granted the State's petition for certification.

HELD: The on-scene identification by a citizen informant and corroborative discovery of the weapon gave officers probable cause to arrest defendant and, therefore, defendant's volunteered statement to police should not have been suppressed as the product of an unlawful arrest. In addition, the members of the Court being equally divided, the judgment of the Appellate Division is affirmed, holding that the non-appearing witness's testimonial hearsay statement was inadmissible under the Sixth Amendment Confrontation Clause. The admission of the statement had the clear capacity to cause an unjust result and was not harmless error beyond a reasonable doubt.

All six members of the Court join in paragraphs 1 and 2. JUSTICE ALBIN is joined by JUSTICES LaVECCHIA and WALLACE in paragraphs 3-7.

1. The Fourth Amendment permits a police officer to make a warrantless arrest of a defendant in a public place provided that the officer has probable cause to believe the defendant committed a crime. In determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances, viewing those circumstances from the standpoint of an objectively reasonable police officer. In assessing the facts available to a police officer, important considerations are the witness's veracity, reliability, and basis of knowledge. Generally speaking, information given by a citizen directly to a police officer will receive greater weight than information received from an anonymous tipster. (pp. 14-17)

2. From the standpoint of an objectively reasonable police officer, the combination of an identifiable citizen's account of events that she witnessed first hand minutes earlier and the discovery of corroborative evidence -- the shotgun with which she was purportedly threatened -- in the location she described provided probable cause to arrest defendant. Based on the totality of the circumstances, the police had a well-grounded suspicion that defendant had committed a crime. Given the Court's holding, it makes little difference whether defendant's custodial status was characterized as an investigative detention or an arrest. However, the degree of the restraint on defendant's freedom constituted, for Fourth Amendment purposes, an arrest triggering the probable cause requirement. (pp. 17-21)

3. The female witness's out-of-court statement identifying defendant as the gunman was the critical piece of evidence determining whether defendant was guilty of unlawfully possessing a shotgun. The woman was not called as a witness at trial, presumably because she was "unavailable" due to the State's inability to locate her. The police officers at the scene allowed her to leave without obtaining any identifying information because she expressed fear for her safety. However, defendant never had a prior opportunity to cross-examine her. In Crawford v. Washington, the United States Supreme Court declared that the Sixth Amendment's Confrontation Clause prohibited the use of an out-of-court testimonial statement against a criminal defendant unless the witness was unavailable and the defendant was given a prior opportunity to cross-examine her. The Confrontation Clause proscribes "the use of outof-court testimonial hearsay, untested by cross-examination, as a substitute for an in-court testimony." Out-of-court statements that contravene the Confrontation Clause include both testimonial statements elicited by the police during interrogations and testimonial statements volunteered to the police. A statement about a relevant past event made to a police officer during a criminal investigation meets the Sixth Amendment's formality and solemnity requirement for a testimonial statement. Crawford does not bar the use of all hearsay at trial, however. If an out-of-court statement is non-testimonial, it is admissible because the constitutional right to confrontation does not apply to a non-testimonial statement that falls within a recognized hearsay exception. (pp. 21-26)

4. In the companion cases of Davis v. Washington and Hammon v. Indiana, the Supreme Court applied the principles underlying Crawford and defined in greater detail the distinction between non-testimonial and testimonial statements. Statements are non-testimonial when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. In contrast, statements are testimonial when circumstances objectively indicate that there is no ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (pp. 26-32)

5. The government bears the burden of proving the constitutional admissibility of a statement in response to a Confrontation Clause challenge. Here, the non-testifying witness's statement implicating defendant was testimonial, that is, the statement was the equivalent of bearing witness against defendant, and he was denied the opportunity of confronting his accuser. The State has not shown that this case presents the type of ongoing emergency described in Davis that would justify an end run around the Confrontation Clause. While there was some difference in the testimony presented by Officers Ruocco and Sullivan, there were none that would change the outcome of the analysis. In both officers' accounts the witness returned to the scene -- after she saw the presence of the police -- to assist in the investigation into past criminal conduct. In both accounts, the witness knew that the shotgun was under the Cadillac when she spoke to the officers. In both accounts, like in Hammon, the witness was separated from defendant. Unlike the factual scenario in Davis, the witness was not "speaking about events as they were actually happening" or calling for help against a true physical threat. The primary purpose of this interrogation was to investigate a possible crime and, therefore, a non-testifying witness's statement about how she was threatened with the gun was testimonial and inadmissible. To too broadly construe the definition of a non-testimonial statement for Sixth Amendment purposes would swallow the constitutional preference for the in-court testimony of a witness and eviscerate the procedural protections provided by the Confrontation Clause. (pp. 32-39)

6. The Court should proceed with caution before finding an out-of-court statement to be non-testimonial when the statement is the critical piece of evidence in an identification case. The perils of identification testimony, even when the witness is subject to robust cross-examination, are well documented. Identification was the key issue in this case and yet the woman who witnessed the events was not in court to respond to questions concerning her credibility or the reliability of her observations. To open wide the door to hearsay identification made by non-testifying witnesses might exponentially increase the likelihood of misidentifications. Here, the police chose not to determine the witness's identity. Condoning such practice would give a perverse incentive to the police not to obtain basic identifying information from its star witness. The cost to the system of justice by the State's failure to take reasonable steps to produce a witness whose testimony was critical to the defendant's fate cannot be overlooked. Not securing the name and address of the State's key witness, but using the statement of the witness to convict the accused, makes hollow defendant's right of confrontation. (pp. 39-42)

7. The dissent would remand the Confrontation Clause issue to the trial court; however, a remand would serve little purpose because it will not settle the conflict in the testimony of the two officers, even if that conflict were meaningful. We must accept that they have different recollections. To the extent that the characterization of the woman's statement as testimonial or non-testimonial depends on whether one believes Officer Ruocco or Officer Sullivan, the State cannot conceivably meet its burden of establishing an exception to the Confrontation Clause. Thus, accepting the whole of the two officers' testimony, the State did not meet its burden of proving that the unavailable witness's statement was non-testimonial. Exceptions to constitutional rights -- including exceptions to the Confrontation Clause -- must be narrowly drawn.

Three members of the Court agree that the non-appearing witness's hearsay statement was testimonial and inadmissible, and three members do not. Because the admission of the statement could not be harmless beyond a reasonable doubt, the judgment of the Appellate Division holding that the non-appearing witness's statement implicating defendant in the crime was a testimonial statement barred by the Sixth Amendment's Confrontation Clause is affirmed by an equally divided court. The Court reverses that part of the judgment of the Appellate Division that suppressed defendant's verbal admission to the police on the ground that defendant was arrested without probable cause The matter is remanded for a new trial. (pp. 42-45)

Judgment of the Appellate Division is AFFIRMED IN PART, REVERSED IN PART and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER, dissenting in part, joined by JUSTICES RIVERA-SOTO and HOENS, agrees with the majority's carefully reasoned conclusion that the police had probable cause to arrest defendant. The statement defendant volunteered afterward should not have, therefore, been suppressed. As to the second issue presented, which addresses the admissibility of certain testimony under Crawford v. Washington, the facts matter a great deal. The different versions of events offered by the two officers were based on the trial testimony of those officers at the scene. The trial judge made no factual findings about their relevance and apparent inconsistencies for good reason: nobody raised any Crawford question at the trial level. The issue first surfaced in the reply brief to the Appellate Division. The pivotal factual finding that all danger had passed by the time the woman spoke to the police should not have been made by appellate court judges who did not hear the live testimony presented. Instead this case should be remanded to the trial court to make proper findings and anal yze them under Crawford and its progeny.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE, RIVERA-SOTO, AND HOENS join PARTS I, II and IV of JUSTICE ALBIN'S opinion. JUSTICES LaVECCHIA and WALLACE also join in PART III of JUSTICE ALBIN'S opinion. CHIEF JUSTICE RABNER filed a separate opinion concurring in part and dissenting in part, in which JUSTICES RIVERA-SOTO and HOENS join.

The opinion of the court was delivered by: Justice Albin

Argued February 23, 2010

JUSTICE ALBIN delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Part III, joined by Justices LaVecchia and Wallace.

In this appeal, the State claims that the Appellate Division erred in overturning defendant Eugene Basil's conviction of unlawful possession of a shotgun. This case involves two distinct constitutional issues, both arising from statements made by a young woman who refused to identify herself to police officers who were dispatched to the scene on the report of a man with a gun. The young woman identified defendant as the person who earlier had pointed a shotgun at her and directed the officers to the location of the discarded shotgun.

The first issue is whether the police had probable cause to arrest defendant. The Appellate Division concluded that defendant's arrest violated the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution and, accordingly, suppressed an incriminating statement made by defendant to police after his arrest. We conclude that the on-scene identification by a citizen informant and corroborative discovery of the shotgun gave the officers probable cause to arrest defendant, and therefore defendant's volunteered statement should not have been suppressed as the product of an unlawful arrest. We therefore reverse the Appellate Division's suppression of defendant's incriminating statement to the police.

The second issue is whether the admission of the young woman's statement at trial violated defendant's right of confrontation guaranteed by the Sixth Amendment to the United States Constitution. Because the police did not secure the woman's name and address, she could not be called as a witness at trial. Her identification of defendant as the person wielding the shotgun -- the critical piece of the State's case - - was introduced through the testimony of two police officers. The Appellate Division determined that the woman's hearsay statement was testimonial and defendant had never been given the opportunity to cross-examine her, and thus the admission of the statement violated the commands of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006). The appellate panel essentially found that the out-of-court statement was testimonial because at the time the unidentified woman made the statement to the police she was not witnessing or experiencing the type of ongoing emergency, as illustrated in Davis, that would provide an exception to the constitutional right of confrontation. Davis, supra, 547 U.S. at 827-28, 126 S.Ct. at 2276-77, 165 L.Ed. at 240-41. Three members of the Court agree that the woman's hearsay statement was testimonial and inadmissible, and three members do not.*fn1

Because the admission of the statement could not be harmless beyond a reasonable doubt, see State v. Macon, 57 N.J. 325, 340 (1971), the judgment of the Appellate Division reversing defendant's conviction is affirmed by an evenly divided Court.

I.

A.

Defendant was charged by a Hudson County grand jury in a two-count indictment with second-degree possession of a shotgun with the purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a), and third-degree knowingly possessing the shotgun without having first obtained a firearms purchaser identification card, N.J.S.A. 2C:39-5(c)(1). In a pretrial motion, defendant claimed that the police did not have probable cause to arrest him and therefore subjected him to an unreasonable seizure in violation of his constitutional rights. He sought to suppress a statement that he allegedly made after he was taken into custody.

Suppression Hearing

At the suppression hearing, Officer Anthony Ruocco of the Jersey City Police Department testified that on February 12, 2005, at approximately 1:00 a.m., he and Officer William Sullivan, as well as other police units, responded to a report of a man with a shotgun at 199 Bidwell Avenue in Jersey City. On his arrival, Officer Ruocco observed approximately three black males, including defendant, in the area of 199 Bidwell Avenue and was approached by a young black woman. She looked to be eighteen- or nineteen-years old, and "came from around the corner." The woman told Officer Ruocco that defendant had pointed a shotgun in her direction (she apparently was with a group of people), and that defendant uttered words to the effect of, "Get off the corner." She also stated that she saw defendant throw the shotgun underneath a black Cadillac. As the woman spoke to Ruocco, "she was shaking a little bit" and her "voice was elevated." Officers Sullivan and Chet Mecca then recovered the shotgun from underneath the Cadillac.

After Officer Ruocco arrived at the scene, officers approached and questioned defendant about the report of the shotgun. Following the young woman's statement and the discovery of the shotgun, defendant was placed in the back of a police car.

The young woman told Officer Ruocco that she lived in the area but nothing else about herself. She said she did not want to speak with any detectives or become involved in the case "because she was scared for her safety." Officer Ruocco did not get her name, address, or telephone number. The young woman just "left [and] walked away."

Officer Ruocco transported defendant in the backseat of a patrol car to the district police station. Officer Ruocco did not consider defendant to be under arrest at that point; however, if defendant had refused to go, he would have placed him under arrest for obstruction. At the police station, Officer Ruocco escorted defendant from the car. Once inside the station, according to Ruocco, defendant commented to him, "What the problem, you guys don't do your job. So I went inside and got my shotgun." At that point, Ruocco placed defendant under arrest, handcuffed him, and gave him the Miranda warnings.*fn2

Defendant testified, presenting a different account from the one described by the nameless witness and Officer Ruocco. Defendant explained that on the night in question he was involved in activities related to his grandmother's recent death. That evening, he had gone to church and brought food to his home at 204 Bidwell Avenue, where family and friends were gathering. At the time the police arrived, he was standing outside his home. A police officer approached him and asked him if "anything [was] going on." Later, an officer told him he was "under arrest for having a gun." He then was handcuffed and taken to the police precinct. Defendant denied possessing the shotgun found under the Cadillac, pointing that weapon at anyone, or making the incriminating statement attributed to him by Officer Ruocco.

The court found Officer Ruocco's credibility "to be excellent." The court concluded that the police engaged in a lawful investigative detention based on the statement of the citizen informant and the discovery of the shotgun. It further determined that based on defendant's "spontaneous" admission to possessing the shotgun, the police had probable cause to arrest him. Accordingly, the court denied the motion to suppress defendant's incriminating statement.

The Trial

After jury selection, defendant challenged the admissibility of the non-appearing woman's statement to Officer Ruocco -- identifying defendant as the person wielding the shotgun -- on hearsay and confrontation grounds.*fn3 The court determined that the statement was admissible under the excited-utterance exception to the hearsay rule, N.J.R.E. 803(c)(2).*fn4

At trial, the State presented three witnesses. Officer Ruocco testified that he and Officer Sullivan were dispatched to the area of 199 Bidwell Avenue in Jersey City on the report of a man with a shotgun. On their arrival, defendant was standing in front of 199 Bidwell Avenue. While Officer Sullivan "was holding [defendant]," Officer Ruocco was approached by an eighteen- or nineteen-year-old black woman who "came from around the corner." She told the officer that she was standing on the corner (apparently with others) when defendant "pointed a shotgun at their direction and stated get off the corner." She also "stated that the shotgun was thrown under a black Cadillac."*fn5

Officer Sullivan gave a somewhat different account. Officer Sullivan testified that after he and Officer Ruocco arrived at the scene, a black female walked across the street and approached him. She said, "[T]hat's him," pointing to defendant, "he's the one with the gun." The two officers then told defendant to halt, and he replied, "What do you want me for?" Simultaneously, the woman advised the officers that the gun was underneath a black Cadillac. With Officer Ruocco in control of defendant -- ten feet from the Cadillac -- and the arrival of another police car, Officer Sullivan retrieved the unloaded shotgun from underneath the car.

According to Officer Sullivan, the woman stated that she did not want to be a witness, and therefore he did not get her name. Fearing that people on the street might become disruptive, Officers Sullivan and Ruocco immediately transported defendant to the district police station. Officer Sullivan explained that the shotgun was not dusted for fingerprints because of defendant's reported admission to Officer Ruocco. However, Officer Sullivan testified that in his presence defendant denied owning or having anything to do with the shotgun.

Last, Detective Daniel Diaz of the Hudson County Prosecutor's Office testified that the shotgun recovered under the Cadillac was operable.

Defendant presented two witnesses, both friends, Tarieka Hatcher and Vladimir Thomas. Ms. Hatcher, a postal employee, testified that on the evening in question she met defendant and his friend, Vladimir Thomas, at a bar. Defendant had attended a funeral earlier in the day. They carried out champagne to bring to defendant's home near the corner of Bidwell Avenue and Martin Luther King Drive, where a number of people were on the street. She was in close proximity to defendant, near his home on Bidwell Avenue, until the time of his arrest. She never saw him in possession of a shotgun.

Mr. Thomas, a carpenter, testified that on February 12, 2005, he too was in the company of defendant, first at the funeral, later at the bar, and afterwards in front of defendant's home on Bidwell Avenue. He described the "area [as] a drug corner." He recalled that he was in defendant's presence on Bidwell Avenue for all but the few minutes he was inside a nearby food store. As he left the store, he ...


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