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Flack v. Ballard

Supreme Court of West Virginia

June 9, 2017

BRANDON FLACK, Petitioner Below, Petitioner
v.
DAVID BALLARD, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

          Submitted: February 8, 2017

         Appeal from the Circuit Court of Mercer County The Honorable Omar J. Aboulhosn, Judge Case No. 14-C-23-OA

          Sidney H. Bell, Esq. Attorney at Law Beaver, West Virginia Counsel for the Petitioner.

          Patrick Morrisey, Esq. Attorney General Zachary Aaron Viglianco, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent.

         SYLLABUS

         1. "'In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.' Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006)." Syllabus Point 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

         2. "In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Syllabus Point 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

         3. "In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue." Syllabus Point 6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

         4. "When a co-perpetrator is killed by the intended victim of a burglary during the commission of a crime, the surviving co-perpetrator cannot be charged with felony murder pursuant to West Virginia Code § 61-2-1 (2010)." Syllabus Point 4, State ex rel. Davis v. Fox, 229 W.Va. 662, 735 S.E.2d 259 (2012).

         5. "'[T]he elements which the State is required to prove to obtain a conviction of felony murder are: (1) the commission of, or attempt to commit, one or more of the enumerated felonies; (2) the defendant's participation in such commission or attempt; and (3) the death of the victim as a result of injuries received during the course of such commission or attempt.' State v. Williams, 172 W.Va. 295, [310, ] 305 S.E.2d 251, 267 (1983)." Syllabus Point 5, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987).

         6. "In a criminal trial an accomplice may testify as a witness on behalf of the State to having entered a plea of guilty to the crime charged against a defendant where such testimony is not for the purpose of proving the guilt of the defendant and is relevant to the issue of the witness-accomplice's credibility. The failure by a trial judge to give a jury instruction so limiting such testimony is, however, reversible error." Syllabus Point 3, State v. Caudill, 170 W.Va. 74, 289 S.E.2d 748 (1982) as modified by Syl. Pt. 1, State v. Flack, 232 W.Va. 708, 752 S.E.2d 761 (2013).

         7. "Although it is a violation of due process for the State to convict a defendant based on false evidence, such conviction will not be set aside unless it is shown that the false evidence had a material effect on the jury verdict." Syllabus Point 2, In re Investigation of W.Va. State Police Crime Lab., Serology Div., 190 W.Va. 321, 438 S.E.2d 501 (1993).

         8. "In order to obtain a new trial on a claim that the prosecutor presented false testimony at trial, a defendant must demonstrate that (1) the prosecutor presented false testimony, (2) the prosecutor knew or should have known the testimony was false, and (3) the false testimony had a material effect on the jury verdict." Syllabus Point 2, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

         9. "Polygraph test results are not admissible in evidence in a criminal trial in this State." Syllabus Point 2, State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979).

         10. "Double jeopardy prohibits an accused charged with felony-murder, as defined by W.Va. Code § 61-2-1 (1977 Replacement Vol.), from being separately tried or punished for both murder and the underlying enumerated felony." Syllabus Point 8, State v. Williams, 172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295');">172 W.Va. 295, 305 S.E.2d 251 (1983).

          WALKER JUSTICE.

         Petitioner Brandon Flack appeals the August 24, 2015 order of the Circuit Court of Mercer County granting, in part, and denying, in part, his petition for habeas corpus. Petitioner alleges that the habeas court erred in (1) denying his claims of ineffective assistance of counsel; (2) denying habeas relief on the basis that the State knowingly introduced false evidence; and (3) denying habeas relief on the basis that the State made inappropriate comments during closing argument. Respondent Warden, Mount Olive Correctional Complex ("the State"), asserts a cross-assignment of error alleging that the habeas court erred in partially granting Petitioner habeas relief on double jeopardy grounds.[1] We have considered the parties' briefs and arguments, the submitted record and pertinent authorities. For the reasons that follow, we affirm, in part, and reverse, in part, the order of the habeas court and remand this matter with instructions as further indicated below.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The underlying facts were established at the trial in this matter and set forth in Petitioner's direct appeal to this Court in State v. Flack, 232 W.Va. 708, 753 S.E.2d 761 (2013). Sometime in late January 2011, Petitioner and his accomplices came up with a plan to burglarize the home of Petitioner's uncle, David Flack (the "Flack Residence"). Id. at 710, 753 S.E.2d at 763. On the evening of January 28, 2011, Petitioner and his accomplices, who lived in Pulaski, Virginia, drove to Bluefield, West Virginia, where the Flack Residence was located. Id. Arriving shortly after midnight on January 29, 2011, Petitioner and two of his accomplices, Jasman Montgomery and Jacob Thomas, put on the ski masks, obscuring their faces, and approached the back of the Flack Residence and knocked on the door. Id. A fourth man, Joseph Flack, remained in the car.[2] Id.

         Matthew Flack (Petitioner's second cousin), India Simmons (Matthew's cousin), and Milton ("Mel") Thomas (Matthew's friend), were inside the house.[3] Id. Hearing the knock on the back door, Matthew looked through a curtain and saw three masked men standing at the back door. Id. Matthew then ran upstairs to get a gun. Id. As Matthew headed up the stairs, one of the men kicked in the back door. [4] The three men then entered the Flack Residence. Id. Following Matthew, Petitioner ran up the stairs and began wrestling with him. Id. While Petitioner and Matthew struggled on the landing, Mr. Montgomery ran up the stairs, pulled out a gun and shot Matthew Flack in the face. Id. Petitioner was also shot when Matthew Flack fired his gun.[5] Id.

         Petitioner and his accomplices ran out of the Flack Residence and fled from the scene. Id. The men took Petitioner, who was visibly injured, to the hospital. Id. at 711, 753 S.E.2d at 764. There, the men told hospital staff that Petitioner had been shot in a drive-by-shooting. Petitioner's injuries were reported to the police by hospital staff and several officers were dispatched to investigate. Id. Upon their arrival, one of the officers noticed blood on the inside and outside of the car that Petitioner and his accomplices had driven to the hospital. Id. The officers asked for and were given permission to search the car by a young woman named Heather Davis, whose grandfather owned the car. Two handguns and ski masks were found in the trunk.[6] Id.

         Petitioner was subsequently arrested and charged with one count of first degree murder, one count of burglary, one count of first degree robbery, and one count of conspiracy. Id. Pleading not guilty, Petitioner's case proceeded to trial. Id. At trial, the State's witnesses included Petitioner's accomplice, Mr. Montgomery, and Dr. James Kaplan, the State Medical Examiner.[7] Id.

         Mr. Montgomery pled guilty to first degree murder and was sentenced to life with the possibility of parole. Id. As part of his plea agreement, Mr. Montgomery testified for the State and told the jury about the plan they had devised, their forced entry into the Flack Residence, his shooting of Matthew Flack, and driving Petitioner to the hospital. Id. During the course of the trial, defense counsel did not request any limiting or cautionary instruction regarding the consideration the jurors were permitted to give Mr. Montgomery's guilty plea or his testimony that he murdered Matthew Flack. Id.

         At trial, Dr. James Kaplan testified that Mr. Flack died as a result of a gunshot wound. Id. However, the pathologist who prepared the autopsy report did not testify at trial and defense counsel did not object. Id.

         On April 26, 2012, following a three-day trial, a jury convicted Petitioner of all charges and recommended mercy for the murder charge. Petitioner then moved for a new trial, asserting that his rights were violated when the trial court failed to sua sponte give the jury a limiting instruction regarding Mr. Montgomery's testimony about his guilty plea. Id. Petitioner also argued that because there were no African-American members on his jury panel, his constitutional rights were violated. Id. On June 7, 2012, the trial court denied Petitioner's motion for a new trial. Id. Because the State had pursued the murder charge based on a felony murder theory, the trial court merged the counts of first degree murder and burglary, resulting in the dismissal of the burglary conviction. Petitioner was sentenced to life with mercy for the first degree murder offense, forty years for the first degree robbery offense and an indeterminate term of one to five years for the conspiracy offense, with all sentences to run consecutively. Petitioner was given 495 days jail credit.

         Petitioner filed an appeal of his convictions for first degree murder, first degree robbery and conspiracy alleging that: (1) defense counsel's failure to object to or request a limiting instruction following Mr. Montgomery's testimony on behalf of the State and the relation of his guilty plea to the jury, was plain error requiring a reversal of his convictions under State v. Caudill, 170 W.Va. 74, 289 S.E.2d 748 (1982); (2) his right to be tried by a jury drawn from a cross-section of his community was violated; (3) that Mercer County did not comply with the statutory requirements for assembling a jury pool; and (4) the admission of Dr. Kaplan's testimony concerning the cause of Matthew Flack's death based on findings in an autopsy report prepared by someone other than Dr. Kaplan was plain error. See Flack, 232 W.Va. at 712, 753 S.E.2d at 765. Finding no reversible error, we affirmed Petitioner's convictions. Id.

         On January 7, 2014, Petitioner filed a pro se habeas petition alleging various grounds for relief. The habeas court appointed counsel for Petitioner, who then filed a supplemental petition on his behalf on July 29, 2014. As discussed in detail below, Petitioner contended that despite the fact that the State proceeded under a felony murder theory, defense counsel should have vigorously developed and presented an identity of the shooter defense. Petitioner argues that defense counsel could have asserted that Matthew Flack's death was the result of being accidentally shot by his friend, Mel Thomas, who was positioned above him on the stairwell, and that the fatal shot came from a handgun that was still at the scene when the police arrived and not in the trunk of the car at the hospital. Maintaining that this theory of defense should have been pursued, Petitioner presented the following allegations of error to the habeas court below: (1) the robbery offense was a lesser-included offense to the felony murder offense predicated on burglary and, as such, double jeopardy attached when the two were merged; (2) ineffective assistance of counsel for (a) failure to hire an investigator, an expert in forensic pathology, and a firearms expert and to cross-examine the State's experts; (b) failure to object to the autopsy evidence being elicited from a different pathologist than the one who performed the autopsy; (c) failure to object to the co-defendant testifying in front of the jury in prison attire; (d) failure to request a Caudill instruction regarding the co-defendant's testimony; (e) failure to request a copy of the co-defendant's written plea agreement; (f) failure to request a self-defense instruction; and (g) failure to subpoena certain defense witnesses for trial; and (h) failure to object to the medical examiner's testimony as denying him the right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004) and State v. Frazier, 229 W.Va. 724');">229 W.Va. 724, 735 S.E.2d 727 (2012). The State filed a response to the habeas petition asserting that Petitioner's sentences complied with double jeopardy protections, that Petitioner received effective counsel at trial, and that it was inappropriate to second-guess his counsel's strategy in a petition seeking habeas relief.

         The habeas court held an omnibus hearing on July 31, 2015, during which Petitioner testified and called five other witnesses to testify in support of his petition: Officer R.S. Gibson and Lt. C.S. Myers, both with the Bluefield Police Department, Larry Dehus, Danny Lane, and defense counsel Derrick W. Lefler. Officer Gibson, the first officer on the scene of the crime, testified regarding the location of a handgun at the scene, a Hi-Point pistol, and another spent shell casing he observed laying on the second set of stairs on the landing at the crime scene. Lieutenant Myers, the detective on call on the night of the shooting, testified regarding (1) the location of the firearms and casings that were found at the crime scene and submitted to the State Crime Lab; (2) his investigation of the crime and his belief that Mr. Montgomery fired the fatal shot killing Matthew Flack; (3) his interview of Amanda Shorter, the witness who saw four masked men approaching and exiting the Flack Residence; and (4) his interview of Heather Davis and Ashley Burelson, two females who accompanied Petitioner and his co-defendants on the night of the crime, who were picked up and brought to the station for questioning.

         Mr. Lefler, Petitioner's defense counsel at trial, testified regarding his initial investigation of the case, the theory of defense presented at trial, and his thought process regarding trial tactics and strategy.[8]Larry Dehus, an expert in forensic science, firearms and ballistics who was retained by Petitioner's habeas counsel, testified that it was improbable that Mr. Montgomery fired the fatal shot killing Matthew Flack based on the trajectory of his wounds and the position of Mr. Montgomery during the crime.

         Danny Lane, a homicide investigator, firearms expert, and former law enforcement officer retained by Petitioner's habeas counsel, testified regarding his personal investigation of the case, what types of opinions a firearms expert would have presented at trial, including a recreation of the crime scene, and his opinion of how the fatal shot killing Matthew Flack occurred. He also testified regarding his interview of Heather Davis, one of the two women accompanying Petitioner on the night of the crime, and his opinion that Ms. Davis's testimony would have been helpful to the defense because it would have discredited Ms. Shorter's testimony. He testified that cell phone extractions from Jacob Thomas's and Heather Davis's cell phones indicated that Ms. Davis and Ms. Burelson did not accompany Petitioner and his co-defendants to the crime scene. He asserted that because the two women were left by Petitioner at a relative's home while they went to buy beer at a convenience store, this evidence would have conflicted with Amanda Shorter's account of events.

         On August 24, 2015, the habeas court entered an order granting, in part, and denying, in part, Petitioner's habeas petition and an order correcting Petitioner's sentence pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure. The habeas court concluded that Petitioner had failed to prove both prongs of the ineffective assistance of counsel test in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). The habeas court also rejected Petitioner's assertions that false evidence had been presented by the State at trial, finding that inconsistencies in various witnesses' testimony did not prove falsity but rather, constituted credibility determinations that remained in the province of the jury. However, regarding Petitioner's double jeopardy claim, the court found that Petitioner proved, by a preponderance of the evidence, that he had been improperly sentenced to an additional forty years on the robbery offense because the robbery was also a lesser-included offense to the first degree felony murder charge and he should not have been convicted for the lesser-included offense. The habeas court dismissed the robbery conviction and, pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure, corrected Petitioner's sentence to life with mercy for the first degree felony murder conviction and to an indeterminate term of one to five years for the conspiracy conviction. On appeal, both parties assign error to the habeas court's rulings.

         II. STANDARD OF REVIEW

         A circuit court's order granting or denying habeas relief is subject to a three-prong standard of review:

"In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). With these principles in mind, we consider the arguments of the parties.

         III. DISCUSSION

         A. Ineffective Assistance of Counsel

         Petitioner asserts an ineffective assistance of counsel claim that his court-appointed attorneys, Derrick W. Lefler and Ward Morgan (collectively, "defense counsel"), failed to investigate adequately what he alleges is a serious, complex case. Petitioner bases his claim upon several acts or omissions by defense counsel: (1) failure to interview, subpoena, or otherwise attempt to secure the appearance of Heather Davis and Ashley Burelson; (2) failure to hire an investigator or expert witnesses; (3) failure to cross-examine the State's firearms expert or recognize the discrepancy between the testimony of various witnesses with respect to the firearms used in the shooting and entered into evidence; (4) failure to object to the testimony of the State's medical expert on hearsay and confrontation clause grounds; (5) allowing Petitioner's accomplice, who had previously pled guilty to first degree to appear in prison attire when testifying on behalf of the State; (6) failure to request a limiting instruction concerning the accomplice's guilty plea, as permitted by Caudill, 170 W.Va. 74, 289 S.E.2d 748; and (7) failure to request a jury instruction on self-defense.

         With respect to the standards that guide our analysis in claims for ineffective assistance of counsel, we have held:

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Noting that "[j]udicial scrutiny of counsel's performance must be highly deferential, " we further have held:

In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.

Id. at Syl. Pt. 6.

         "[T]he cases in which a defendant may prevail on the ground of ineffective assistance of counsel are few and far between one another." Id. at 16, 459 S.E.2d at 127. Indeed, ineffective assistance claims are rarely granted and only when a claim has substantial merit. State ex rel. Daniel v. Legursky, 195 W.Va. 314, 319, 465 S.E.2d 416, 421 (1995). In Miller, we explained that:

[W]e always should presume strongly that counsel's performance was reasonable and adequate. A defendant seeking to rebut this strong presumption of effectiveness bears a difficult burden because constitutionally acceptable performance is not defined narrowly and encompasses a "wide range." The test of ineffectiveness has little or nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We only ask whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at the time, in fact, worked adequately.

194 W.Va. at 16, 459 S.E.2d at 127. "[T]he burden is on the defendant to prove ineffective assistance by a preponderance of the evidence." State v. Hatfield, 169 W.Va. 191, 209, 286 S.E.2d 402, 413 (1982).

         (1) Fact Witnesses

         Petitioner contends that defense counsel should have called Heather Davis and Ashley Burelson as fact witnesses at trial. Ms. Davis and Ms. Burelson were with Petitioner and his accomplices during the night of the incident at the Flack Residence. Petitioner argues that their testimony could have been used to undermine the testimony of Amanda Shorter, an eyewitness. Ms. Shorter testified at trial that after 11:00 p.m. on the night of January 29, 2011, she saw four men get out of a car, change into dark clothes and put toboggans on their heads. She testified that the men, who were laughing and being loud, walked up to the back door of the Flack Residence and knocked before the door opened and they entered the house. She further testified that subsequent to the men entering the Flack Residence, she heard gunshots and observed two women, Ms. Davis and Ms. Burelson, run up to the same car and get into the backseat before Petitioner and his co-defendants fled the scene. Petitioner contends that contrary to Ms. Shorter's testimony, the police determined that Ms. Davis and Ms. Burelson stayed behind at an apartment and were nowhere near the crime scene. Petitioner argues that the testimony of the two women could have been used to discredit the testimony of Ms. Shorter, and they would have testified that there was no discussion of any plan to commit a crime.

         Petitioner claims that the private investigator he retained for his habeas corpus case located Ms. Davis, who cooperated with him and gave a recorded interview. He contends that had she been subpoenaed by defense counsel, she would have testified that there was no discussion of a plan to commit a robbery, burglary, larceny or any other crime. He also claims that she would have testified that their car had a full tank of gasoline and they had money to purchase beer, food or anything else that they and Petitioner may have wanted or needed that night. He asserts that this evidence could have discredited several state witnesses and supported Petitioner's version of the events leading up to his entry into the Flack Residence. Petitioner contends that prior to going to the Flack Residence, he left Ms. Davis and Ms. Burelson at a relative's home in order to buy beer at a convenience store and they were waiting on him to return because they were planning to ride home with him in Ms. Davis's grandfather's car.

         The State responds that defense counsel's decision not to subpoena these witnesses was a matter of trial strategy and, absent extraordinary circumstances, is outside the purview of an ineffective assistance of counsel claim. The State contends that the theory of the defense presented at trial was that Petitioner and his accomplices did not arrive at the Flack Residence intending to commit any crime and that the conduct of the group as they exited their car and approached the Flack Residence demonstrated their lack of criminal intent. Mr. Lefler stated in his closing argument that there "was no plan [to commit a robbery]" and made reference to Ms. Shorter's testimony recounting her observations of the behavior of Petitioner and the others as they approached the Flack Residence.

         At the omnibus hearing, defense counsel Mr. Lefler testified that "we were certainly aware the State intended to proceed on a felony murder theory, and the particulars [of how and by whom Matthew Flack was killed], in all honesty, weren't our focus." Mr. Lefler described Ms. Shorter as "the best witness we had." He reasoned that her testimony was "potentially very beneficial, " and that "the last thing they wanted to do" was discredit her. Mr. Lefler testified that Ms. Shorter confirmed that Petitioner and his accomplices made a lot of noise and did not appear to be concerned with being quiet or approaching the house in a fashion that was undetectable. Additionally, because Ms. Shorter testified that she did not see a door kicked in, the defense sought to use her testimony to establish that Petitioner and his accomplices approached the house in a manner that did not appear to be for evil intent. Moreover, Mr. Lefler stated that had Ms. Shorter not been called by the State during its case-in-chief, he would have called her as a defense witness. When Petitioner inquired why Ms. Davis and Ms. Burelson were not subpoenaed to testify, Mr. Lefler explained that although he initially looked for these witnesses when he began investigating the case, he could not locate them.

         In Daniel v. Legursky, 195 W.Va. 314, 328, 465 S.E.2d 416, 430 (1995), we stated that "[a] decision regarding trial tactics cannot be the basis for a claim of ineffective assistance of counsel unless counsel's tactics are shown to be 'so ill chosen that it permeates the entire trial with obvious unfairness.'" (quoting Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir.1995)). We have also noted, "[w]hat defense to carry to the jury, what witnesses to call, and what method of presentation to use is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess." Miller, 194 W.Va. at 16, 459 S.E.2d at 127.

         As we explained in Miller, "with [the] luxury of time and the opportunity to focus resources on specific facts of a made record, [habeas counsel] inevitably will identify shortcomings in the performance of prior counsel." Id. at 17, 459 S.E.2d at 128. "[P]erfection is not the standard for ineffective assistance of counsel." Id. Only if an identified error is "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the ...


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