PEOPLE OF MI V ANDRAUS ALDE MCCLOUD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 19, 2009
Plaintiff-Appellee,
v
No. 279551
Genesee Circuit Court
LC No. 06-018520-FC
ANDRAUS ALDE MCCLOUD,
Defendant-Appellant.
Before: Donofrio, P.J., and K. F. Kelly and Beckering, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317, armed robbery, MCL 750.529, and first-degree home invasion, MCL 750.110a(2). The
trial court sentenced defendant as a fourth habitual offender, MCL 769.12, to concurrent terms of
960 to 1500 months’ imprisonment for second-degree murder, 320 to 700 months’ imprisonment
for armed robbery, and 320 to 700 months’ imprisonment for first-degree home invasion. We
affirm.
I. Basic Facts and Procedural History
Around three a.m. on April 13, 2006, defendant, Tiequan Riley, Charity Mosley, and
Christopher Jones traveled in a burgundy sport utility vehicle (SUV) to the house of Benjamin
Clemons, who is allegedly known to sell drugs. After arriving at the house, defendant and Riley
exited the SUV and went up the house’s back steps. Defendant and Riley had each put on plastic
facemasks and they proceeded to break into Clemons’s home through the back door. Once
inside, defendant and Riley searched for drugs and money. According to Riley, an altercation
ensued between Clemons and defendant, which led to defendant shooting Clemons.
Subsequently, Clemons died. Riley and defendant then returned to the SUV. When back in the
car, Riley held up a bag of cocaine and said he “didn’t even get a lot from him.” Riley had also
taken $100 from the house of which he gave defendant $40 and Jones $20, keeping the
remainder for himself. While these events transpired, Clemons’s girlfriend, who had escaped to
the home’s lower apartment before Riley and defendant entered the house, had called the police.
As a result, the SUV was almost immediately pulled over by police. Both Riley and
defendant, who were sitting in the back passenger seats, got out and fled on foot. Riley was
apprehended that same night. A gun and a facemask were recovered along the path upon which
Riley fled. Defendant was not apprehended at this time, although Mosley identified defendant in
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a photograph for the police. The police eventually learned that defendant was in jail on unrelated
charges. DNA on a facemask found in the SUV’s back passenger seat matched defendant’s
DNA. In connection with these events, defendant was charged with open murder, felony murder,
armed robbery, first-degree home invasion, felon in possession of a firearm, carrying a concealed
weapon, and felony firearm.
Before trial, defendant moved to suppress a statement he had given on the grounds that
defendant was coerced into providing a confession. The trial court conducted a Walker1 hearing.
According to detective Shanlian, after defendant’s arrest detectives discovered a murder-for-hire
plot, in which defendant had made phone calls to Alesha Hawkins, allegedly defendant’s
girlfriend, and George Pouncy, to get rid of a witness. On February 15, 2007, Hawkins went to
the jail to visit defendant and she was arrested. Detective Shanlian testified that the next day
defendant was questioned and was told that both Hawkins and Pouncy were in custody and had
made statements. Detective Shanlian testified that when defendant stated that he did not want to
talk, he did not pursue any questioning and promptly left the room; defendant did not ask for an
attorney at that time. Fifteen minutes later, defendant decided he wanted to speak with detective
Shanlian. Detective Shanlian then returned with a recorder, read defendant his Miranda rights,
and defendant made a statement. Detective Shanlian further testified that defendant also
requested that he be able to speak with Hawkins, so that he could “make her tell the truth
because he got her into this mess.” Detective Shanlian told defendant that he would be able to
speak with Hawkins and permitted defendant to see Hawkins after the interview. The detective
denied making any threats to defendant.
Contrary to detective Shanlian’s testimony, defendant testified that he had been in the
“hole” for nearly 24 hours before detective Shanlian brought him in for questioning and that he
had not been able to bath or eat before the meeting. When defendant indicated that he did not
want to answer any questions, detective Shanlian, according to defendant, showed defendant a
photo of Hawkins and threatened defendant by telling him that both he and Hawkins would get
life sentences. Detective Shanlian then allegedly indicated that defendant would have to go back
to the “hole” because he was not cooperating.2 Detective Shanlian also allegedly told defendant
that he was “less than a man . . . for not making a statement to get [Hawkins] out of trouble.”
Defendant testified that he became very emotional because Hawkins was “basically all I got.”
Defendant testified that he then signed the Miranda form presented to him and made a statement
because he did not want to go back to the “hole” and because he was told Hawkins would be
released. After the Walker hearing, the trial court denied defendant’s motion to suppress
reasoning that, under the totality of the circumstances, defendant did not give a statement under
duress, coercion, or undue influence.
The matter proceeded to trial. During jury selection, the trial court referred to the
prospective jurors by number. Once the trial court seated the 14 jurors, which included two
alternates, it continued to refer to the jurors by number. Then, before opening statements, the
1
2
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
The detective testified, however, that the jail did not have a solitary confinement area.
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court disclosed defendant’s underlying felony charge for the charge of felon in possession when
it provided the jury with preliminary instructions. The court stated:
Count V is Possession of a Firearm by a Felon. It is alleged that on or about April
13th of 2006 in the City of Flint, County of Genesee, that Andraus McCloud did
possess or use or carry a firearm when ineligible to do so because he or she had
been convicted of Fleeing and Eluding a Police Officer in the Third Degree, a
felony punishable by imprisonment of four or more years. That the requirements
for gaining eligibility have not been met.
The parties had previously stipulated not to disclose the underlying charge. Defense counsel did
not object.
After the trial testimony, two jurors were excused—one on the day before deliberations
and the second right before deliberations began. Subsequently, defendant was convicted of
second-degree murder, armed robbery, and first-degree home invasion. When the jury was
polled, 12 jurors acknowledged the verdict.
At the sentencing hearing, the trial court noted the history of the case, the fact that
defendant was on parole during the commission of the crimes, and that defendant was a fourth
habitual offender. The trial court also referenced defendant’s lack of remorse. The court then
sentenced defendant to concurrent terms on each count.
Upon preparation for appeal, appellate counsel discovered a 31-minute gap during the
May 2, 2007, proceedings where the cross-examination of prosecution witness Valerie Bowman,
a forensic scientist, was not transcribed. Appellate counsel also found that the digital recording
stopped for the remainder of the May 3, 2007, proceedings, when Charity Mosley was testifying.
This appeal followed.
II. Motion to Suppress
Defendant first argues that his statement was not voluntarily given and the trial court
erred by denying his motion to suppress. We disagree. We review the trial court’s decision on a
motion to suppress de novo. People v Akins, 259 Mich App 545, 563; 675 NW2d 863 (2003).
While we review the entirety of the record independently, we defer to the trial court’s assessment
of the evidence and the credibility of the witnesses, and we will not disturb factual findings
absent clear error. People v Shipley, 256 Mich App 367, 372-373; 662 NW2d 856 (2003);
People v Givans, 227 Mich App 113, 119; 575 NW2d 84 (1997). A finding is clearly erroneous
if we are left with a definite and firm conviction that a mistake has been made. Givans, supra at
119.
A defendant’s statement obtained during a custodial interrogation is admissible only if
defendant knowingly, intelligently, and voluntarily waived his Fifth Amendment rights.
Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). In determining
whether a statement was voluntarily made, we must consider the totality of the circumstances
and whether those circumstances indicate that the statement was voluntarily and freely given.
People v Cipriano, 431 Mich 315, 333-334; 429 NW2d 781 (1988). “A confession or waiver of
constitutional rights must be made without intimidation, coercion, or deception . . . and must be
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the product of an essentially free and unconstrained choice by its maker.” Akins, supra at 564
(citation omitted). In Cipriano, supra, our Supreme Court indicated a non-exhaustive list of
factors to consider, including:
The age of the accused; his lack of education or his intelligence level; the extent
of his previous experience with the police; the repeated and prolonged nature of
the questioning; the length of the detention of the accused before he gave the
statement in question; the lack of any advice to the accused of his constitutional
rights; whether there was an unnecessary delay in bringing him before a
magistrate before he gave the confession; whether the accused was injured,
intoxicated or drugged, or in ill health when he gave the statement; whether the
accused was deprived of food, sleep, or medical attention; whether the accused
was physically abused; and whether the suspect was threatened with abuse. [Id. at
334.]
In the present matter, detective Shanlian asked defendant whether he would submit to
questioning and when defendant indicated that he would not, detective Shanlian left the room.
About 15 minutes later, defendant indicated that he wanted to speak with the detective.
Detective Shanlian returned, provided defendant with his Miranda rights, and defendant made a
statement. During this time, defendant asked to speak with his girlfriend and he was permitted to
do so after the interview. Defendant’s testimony, however, directly contradicted detective
Shanlian’s testimony. Defendant testified that the detective threatened him before the interview
and that he gave a statement involuntarily because of this threat and because he feared going
back to the “hole.” The trial court, however, found no suggestion that defendant’s statement was
the result of threats. The court stated:
In my opinion there is nothing about this circumstance involving the Alesha
Hawkins aspect of it that would be considered duress or coercion or undo [sic]
influence towards the Defendant when looked at the totality of the circumstances.
The reason for that is that the Defendant’s rights were read to him. He waived
those rights by initialing his name beside it. And then it wasn’t until they had
gotten towards the end of the discussion about the Miranda that the issue
involving Alesha Hawkins had come up.
The trial court also noted the fact that defendant was in restrictive housing, but that he was not
being denied the “normal comforts” of inmates in his position, and that there was no indication
that defendant had been denied food, water, sleep, or any necessary medical treatment. We agree
with the trial court, that under the totality of the circumstances, defendant’s statement was not
the product of coercion or duress. And while the trial court agreed with the detective’s version
of events, we are bound to defer to the trial court’s assessment of the witnesses’ credibility
absent a finding of clear error. Shipley, supra at 372-373. After our review of the record we
cannot conclude that the trial court’s findings were clearly erroneous. We thus find that the trial
court did not err by finding that defendant’s statement was voluntarily and freely made.
III. Anonymous Jury
Defendant next argues that his due process rights were violated when the trial court
referred to the jurors by number, rather than by name, throughout the proceedings. We disagree.
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A trial court’s decision to empanel an anonymous jury is reviewed for an abuse of discretion.
People v Williams, 241 Mich App 519, 522; 616 NW2d 710 (2000). Further, because defendant
did not object below, we review this unpreserved constitutional issue for plain error affecting
substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Defendant
must show that “1) [an] error . . . occurred, 2) the error was plain, i.e., clear or obvious, 3) and
the plain error affected substantial rights.” Id. at 763.
“An ‘anonymous jury’ is one in which certain information is withheld from the parties,
presumably for the safety of the jurors or to prevent harassment by the public.” Williams, supra
at 522. The use of an anonymous jury implicates: “(1) the defendant’s interest in being able to
conduct a meaningful examination of the jury and (2) the defendant’s interest in maintaining the
presumption of innocence.” Id. at 522-523. Thus, to successfully challenge the empanelling of
an anonymous jury, “the record must reflect that the parties have had information withheld from
them, thus preventing meaningful voir dire, or that the presumption of innocence has been
compromised.” Id. at 523; see also People v Hanks, 276 Mich App 91, 93-95; 740 NW2d 530
(2007).
Here, the jurors were only anonymous in the literal sense. The parties were not deprived
of meaningful voir dire—rather, they engaged in extensive voir dire at the outset of trial.
Nothing in the record shows that any of the jurors’ biographical information was withheld from
the parties during this process. Nor has defendant shown that the trial court’s reference to the
jurors by number undermined defendant’s presumption of innocence. As in Williams, supra at
524, there is nothing to suggest that the jurors viewed the court’s decision to refer to them by
number to be anything out of the ordinary. Defendant’s argument that the trial court’s decision
created an inference that the court had already concluded that defendant was “guilty of murder
and dangerous” is without factual support in the record. We will not presume prejudice based on
mere speculation. Thus, the trial court’s decision to refer to the jurors by number did not violate
defendant’s due process rights and, accordingly, we conclude that defendant has failed to show
plain error affecting substantial rights.
IV. Ineffective Assistance of Counsel
Defendant also contends that trial counsel rendered ineffective assistance in violation of
his Sixth Amendment right to counsel. Whether a defendant has been deprived of effective
assistance presents a mixed question of fact and law, which is reviewed for clear error and de
novo respectively. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). However,
where there has been no evidentiary hearing on the matter below, as is the case here, our review
is limited to errors apparent on the record. People v Rodriguez, 251 Mich App 10, 38; 650
NW2d 96 (2002).
“To establish ineffective assistance of counsel, [a] defendant must first show that (1) his
trial counsel’s performance fell below an objective standard of reasonableness under the
prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s
error, the result of the proceedings would have been different.” People v Uphaus (On Remand),
278 Mich App 174, 185; 748 NW2d 899 (2008). In other words, the defendant must show
prejudice such that he was deprived of a fair trial. People v Powell, 278 Mich App 318, 324; 750
NW2d 607 (2008). A defendant must overcome a strong presumption that counsel’s actions may
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have constituted sound trial strategy. People v Brown, 279 Mich App 116, 140; 755 NW2d 664
(2008).
A. Prior Felony Conviction and Unrelated Arrest
Defendant first asserts that he was denied effective assistance because counsel failed to
object when the trial court informed the jury of defendant’s previous felony conviction, the
predicate offense for the felon in possession charge. Although the parties had previously
stipulated that the underlying charge would not be disclosed to the jury, the trial court,
nonetheless, read the charge to the jury during preliminary instructions before the prosecution’s
case-in-chief. The trial court stated:
Count V is Possession of a Firearm by a Felon. It is alleged that on or about April
13th of 2006 in the City of Flint, County of Genesee, that Andraus McCloud did
possess or use or carry a firearm when ineligible to do so because he or she had
been convicted of Fleeing and Eluding a Police Officer in the Third Degree, a
felony punishable by imprisonment of four or more years. That the requirements
for gaining eligibility have not been met.
We cannot conclude that trial counsel’s failure to object at this point in the proceedings
fell below an objective standard of reasonableness under prevailing professional norms. Counsel
may have chosen not to object as a matter of sound trial strategy. Arguably, had counsel
objected he would have unnecessarily drawn the jury’s attention to defendant’s prior conviction.
People v Horn, 279 Mich App 31, 40; ___ NW2d ___ (2008). Moreover, assuming counsel’s
failure to object to the disclosure of the relatively minor and non-violent nature of defendant’s
prior conviction was not sound trial strategy, defendant has failed to show a reasonable
probability that the result of the proceedings would have been different. Uphaus (On Remand),
supra at 185. We cannot conclude that counsel was ineffective for failing to object to the court’s
preliminary instructions that disclosed the prior conviction. Brown, supra at 140.
For the same reason, we must reject defendant’s argument regarding the testimony
elicited from detective Bigelow regarding an unrelated charge. During direct examination, the
prosecution asked the detective whether “there [came] a time where you found the fourth subject
[defendant]?” In response, detective Bigelow stated:
We did. I received information from . . . the Mount Morris Township Police
Department that they had arrested a subject on another charge at their department
and he was lodged in the County Jail. He informed me that he believed that it was
the suspect that we were looking for from my [sic] murder.
Assuming, without deciding, that this was inadmissible other acts evidence, defense counsel’s
decision not to object was arguably a matter of trial strategy. Again, had counsel objected,
counsel’s objection could have unnecessarily drawn the jury’s attention to defendant’s prior
arrest and unrelated charge. Horn, supra at 40. It cannot be said that counsel, in this capacity,
acted below an objective standard of reasonableness under prevailing professional norms.
Because defendant has failed to overcome the strong presumption that counsel’s actions were a
matter of trial strategy, this argument also fails. Brown, supra at 140.
B. Prosecutorial Misconduct
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Defendant next argues that counsel was ineffective because he failed to object when the
prosecutor allegedly vouched for the credibility of accomplice witness, Riley. Specifically,
defendant contends that the disclosure of the fact that Riley had already pleaded guilty before
defendant’s trial sent the jury “a message” that the prosecutor had verified the truth of Riley’s
testimony. The prosecutor elicited the following testimony:
Q. Mr. Riley . . . . You were charged in this case, is that correct?
A. Yes.
*
*
*
Q. And you pled guilty in this case, correct?
A. Yes.
*
*
*
Q. You’ve also agreed to testify truthfully in this matter, is that correct?
A. Yes.
We agree that it is improper for a prosecutor to vouch for a witness’s credibility such that
he indicates a special knowledge with respect to the witness’s truthfulness. Rodriguez, supra at
31. However, “by calling a witness who testifies pursuant to an agreement requiring him to
testify truthfully, the Government does not insinuate possession of information not heard by the
jury and the prosecutor cannot be taken as having expressed his personal opinion on a witness’
veracity.” People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995) (quotation marks and
citation omitted).
There is nothing in the record, and defendant has not pointed us to any additional facts,
which indicates that the prosecutor used the plea agreement to suggest that she knew Riley was
testifying truthfully. Simply disclosing that Riley promised to testify truthfully does not by itself
constitute misconduct. Id. at 276-277. Because the prosecutor did not engage in misconduct, it
cannot be said that defense counsel was ineffective for failing to object. Counsel is not
ineffective for failing to raise a futile objection. People v Unger, 278 Mich App 210, 256; 749
NW2d 272 (2008).
C. Witness in Jailhouse Clothing
Defendant also contends that counsel was ineffective for permitting a defense witness to
testify while wearing jailhouse clothing. In defendant’s view, the jury likely discounted the
witness’s credibility because he was wearing prison garb. We cannot agree.
The witness, Sherman Buggs, provided exculpatory testimony because he testified that
Riley told him that Riley, rather than defendant, shot and killed decedent while defendant stood
and waited in the hallway. However, even assuming that defense counsel should have objected
to Buggs’s prison outfit, defendant must still show that the error prejudiced the outcome of the
case. Defendant has failed to do so here. Buggs’s testimony was comparatively limited when
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viewed in light of the overwhelming evidence that defendant committed the crimes charged. The
trial testimony established that two masked individuals arrived at Clemons’s house in a burgundy
SUV type vehicle and then broke into Clemons’s house, robbed, and shot him. The victim’s
girlfriend quickly called the police to the scene and the police apprehended the suspect vehicle.
Defendant escaped that night while Riley was apprehended. A mask found in the SUV’s
backseat contained DNA matching defendant’s DNA. Buggs was not an eyewitness to any of
these events. Thus, even if Buggs’s had been wearing different clothing, the testimony itself was
unlikely to be a substantial defense in the eyes of the jury.
Further, counsel’s decision not to object may have been part of his trial strategy. During
closing argument, counsel capitalized upon the fact that Buggs’s was wearing prison clothes in
an attempt to discredit prosecution witness Charity Mosley. Counsel argued that Mosley was the
“schemer” of the events that occurred and that she, unlike Buggs, “didn’t come in here in an
orange outfit . . . .” This statement drew sympathy for both Buggs and defendant, see Estelle v
Williams, 425 US 501, 507-508; 96 S Ct 169; 48 L Ed 2d 126 (1976), and may have indirectly
bolstered Buggs’s credibility. Because defendant has not shown that counsel’s actions
prejudiced him or that counsel’s decision was a matter of sound trial strategy, we cannot
conclude that defendant was denied effective assistance for this reason. Brown, supra at 140.
D. Jury Verdict
Lastly, defendant asserts that his due process rights were violated and that counsel was
ineffective for failing to object when 13 rather than 12 jurors deliberated on the verdict.
However, defendant’s assertion is mistaken. Our review of the record shows that the trial court
originally sat 14 jurors and dismissed two of them before deliberations began. In addition, the
amended verdict transcript indicates that only 12 jurors deliberated on the verdict, as only 12
jurors answered when the court polled the jury. Because there was no error, it would have been
futile for defense counsel to object. Counsel cannot be ineffective for raising a meritless
objection. Unger, supra at 256. For all of the foregoing reasons, defendant was not denied
effective assistance of counsel in violation of the Sixth Amendment.
V. Missing Transcripts
Defendant further argues that missing portions of the transcript have deprived him of his
constitutional right to meaningful appellate review. Specifically, defendant asserts that these
gaps have made it impossible for him to “discover potentially meritorious appeal issues.” We
disagree. This issue presents a question of constitutional law that we review de novo.
Rodriguez, supra at 25.
A new trial must be ordered where the unavailability of transcripts impedes a defendant’s
constitutional right to an appeal. People v Audison, 126 Mich App 829, 834-835; 338 NW2d
235 (1983). A new trial is necessary if “it is impossible to review the regularity of the
proceedings due to the lack of transcripts.” People v Horton (After Remand), 105 Mich App
329, 331; 306 NW2d 500 (1981). “If the surviving record is sufficient to allow evaluation of
[the] defendant’s claims on appeal, [then the] defendant’s right is satisfied . . . .” Audison, supra
at 835. A defendant must show prejudice as a result of the missing transcripts; a defendant
“must present something more than gross speculation that the transcripts were requisite to a fair
appeal.” Bransford v Brown, 806 F2d 83, 86 (CA 6, 1986).
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Here, the missing transcripts include a 31-minute gap in the testimony of prosecution
witness Valerie Bowman, a forensic scientist, and a gap of unknown duration in the afternoon
session of Charity Mosley’s testimony. These missing portions occurred over the course of a
nine-day jury trial. In our view, the surviving record is sufficient to allow meaningful evaluation
of defendant’s appellate claims. Audison, supra at 835. Further, defendant has failed to show
that he has suffered prejudice as a result of the missing transcripts. Rather, defendant merely
speculates that some issues may have been contained in those portions of the missing testimony.
Bransford, supra at 86. Because defendant has failed to show that he was deprived of his right to
appellate review, a new trial is not necessary.
VI. Sentencing
Lastly, defendant argues that he is entitled to resentencing because the trial court
referenced his lack of “remorse” during sentencing. According to defendant, the trial court’s
statement was tantamount to basing defendant’s sentence on defendant’s refusal to admit guilt.
We cannot agree. We review a trial court’s imposition of a sentence for an abuse of discretion
and its application of the statutory sentencing guidelines de novo. People v Underwood, 278
Mich App 334, 337; 750 NW2d 612 (2008).
During sentencing, the trial court made the following statement:
And to watch you even in this courtroom this morning and to watch when
Mrs. Clemons approached the podium and talked, to watch your attitude of her.
You didn’t seem to have any remorse what—you didn’t show any remorse
whatsoever. And even when you got up and you spoke, you showed no remorse
whatsoever for this victim in this case.
We are of the view that defendant has mischaracterized the trial court’s statement. The trial
court’s statement considers defendant’s attitude toward the victim’s mother. It does not
reference defendant’s position that he maintains his innocence despite the jury’s verdict. It is
true that a sentencing court cannot base its sentence in whole, or in part, on a defendant’s refusal
to admit guilt, People v Jackson, 474 Mich 996, 996; 707 NW2d 597 (2006), as indicated if the
court, for example, asks the defendant to admit guilt or offers a lesser sentence in exchange for
such an admission. People v Spanke, 254 Mich App 642, 650; 658 NW2d 504 (2003). There is
no such indication here. Rather, the trial court properly considered, as it may, defendant’s lack
of remorse. See People v Houston, 448 Mich 312, 323; 532 NW2d 508 (1995). Defendant is not
entitled to resentencing.
Affirmed.
/s/ Pat M. Donofrio
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
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