St. Louis v. State of Delaware.

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SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD F. STOKES 1 THE CIRCLE, SUITE 2 SUSSEX COU NTY CO URTHOU SE GEORGET OWN, DE 19947 JUDGE March 6, 2008 James St. Louis SBI# Unit D/E (F-17) Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 RE: James St. Louis v. State of Delaware, Def. ID# 0009015005 (R-2) DATE SUBMITTED: December 31, 2007 Dear Mr. St. Louis: Pending before the Court is a second motion for postconviction relief which defendant James St. Louis ( defendant ) has filed pursuant to Superior Court Criminal Rule 61 ( Rule 61"). Defendant originally filed this second Rule 61 motion on November 13, 2007, and this Court entered an order dated December 14, 2007, denying it. Defendant thereafter timely filed a motion for reargument. The Court VACATES its order of December 14, 2007, and considers anew the Rule 61 motion, as expounded upon by the motion to reargue. After a jury trial, defendant was found guilty of the charges of rape in the first degree involving his step-daughter, a victim less than twelve years old, in violation of 11 Del. C. § 773(a)(5) and continuous sexual abuse of a child in violation of 11 Del. C. § 778. On June 22, 2001, defendant was sentenced as follows. As to the rape in the first degree conviction, he was 1 sentenced to thirty (30) years at Level 5 and after serving twenty (20) years, fifteen (15) years of which were mandatory, at Level 5, the balance was suspended for probation. As to the conviction for continuous sexual abuse, he was sentenced to ten (10) years at Level 5, and after serving a mandatory two (2) years at Level 5, the balance was suspended for probation. Defendant appealed to the Supreme Court, which found no error and affirmed the judgment of the Superior Court. St. Louis v. State, 798 A.2d 1042 (Del. 2002). Defendant thereafter filed his first Rule 61 motion which contained numerous allegations, including ineffective assistance of counsel. This Court denied that motion. State v. St. Louis, Del. Super., Def. ID# 0009015005, Stokes, J. (Sept. 22, 2004). The Supreme Court affirmed that decision on appeal. St. Louis v. State, Del. Supr., No. 446, 2004, Steele, C.J. (March 1, 2005). Besides the direct appeal and the postconviction relief proceedings, defendant has filed other ancillary actions seeking relief from the judgment and sentence. He filed an application for a writ of habeas corpus pursuant to 28 U.S.C.S. § 2254, wherein he advanced the same claims he has advanced in his post-conviction proceedings and which the United States District Court for the District of Delaware ( District Court ) denied. St. Louis v. Carroll, 429 F. Supp.2d 701 (D.Del. 2006). He filed with this Court a motion for correction of illegal sentence on the ground that he did not have the opportunity to review the Presentence Investigation Report ( PSI ). The Court denied that motion. State v. St. Louis, Del. Super., Def. ID# 0009015005, Stokes, J. (May 31, 2007) The Supreme Court affirmed that decision. St. Louis v. State, Del. Supr., No. 294, 2007, Holland, J. (Sept. 28, 2007), den., reh. en banc (Oct. 29, 2007). Additionally, defendant repeatedly has sought to attack his conviction by way of suits brought pursuant to 42 U.S.C.S. § 1983. The District Court dismissed his first such suit on the 2 grounds that defendant could not challenge his conviction under § 1983 and that the claims were frivolous. St. Louis v. Wilson, D. Del., C.A. No. 05-038-SLR, Robinson, J. (Sept. 13, 2005) at 57. Defendant again filed, in District Court, another complaint pursuant to 42 U.S.C.S. § 1983 advancing similar claims. The District Court dismissed that complaint as frivolous because once again, defendant impermissibly sought to attack his conviction by way of a § 1983 suit. St. Louis v. Wilson, D. Del., C.A. No. 06-682-SLR, Robinson, J. (Dec. 14, 2006) at 6-7. The District Court also found the complaint to be malicious and barred by the statute of limitations. Id. at 6-8. The District Court denied defendant s motion for reargument. St. Louis v. Wilson, D. Del., C.A. No. 06-682-SLR, Robinson, J. (April 24, 2007). The Third Circuit Court of Appeals affirmed the District Court s decisions, St. Louis v. Wilson, 2007 U.S. App. LEXIS 21988 (3rd Cir. Sept. 13, 2007), and the United States Supreme Court denied defendant s request for a writ of certiorari, St. Louis v. Wilson, 76 U.S.L.W. 3439 (2008). Meanwhile, defendant had filed another complaint pursuant to 42 U.S.C.S. § 1983 which challenged the veracity of his step-daughter and daughter s testimony and which alleged witness tampering. The District Court dismissed this complaint as malicious and frivolous. St. Louis v. Marshall, D. Del., C.A. No. 07-84-SLR, Robinson, J. (April 24, 2007). The Third Circuit Court of Appeals affirmed this decision, St. Louis v. Wilson, 2007 U.S. App. LEXIS 21988 (3rd Cir. Sept. 13, 2007), and the United States Supreme Court denied defendant s request for a writ of certiorari, St. Louis v. Marshall, 76 U.S.L.W. 3454 (2008). On November 13, 2007, defendant filed his pending Rule 61 motion. That motion contains numerous allegations that trial counsel was ineffective. Defendant explains that, previously, these arguments were argued as procedural actions but not as ineffective assistance 3 of counsel. In his motion to reargue, he asserts that the procedural bars are inapplicable because, as Rule 61(i)(5) provides, there is a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. Of significance to the pending motion are the following facts. The victim, who was eight years old at the time of the trial, and her little sister, were interviewed at the Children s Advocacy Center ( CAC ). The interviews, which led to defendant s arrest, were videotaped. The videotaped interviews were entered into evidence pursuant to 11 Del. C. § 3507.1 Defense counsel objected to the admission of each videotaped interview. Transcript of April 26, 2001, Trial Proceedings at B-16; B-32-3; and B-38 ( April 26, 2001, Trans. at B-__ ); Transcript of April 26, 2001 Trial Proceedings at BB-73 ( April 26, 2001, Trans. at BB-__ ). The Court ruled the videotapes were admissible. April 26, 2001, Trans. at B-33-8; April 26, 2001, Trans. at BB-73-4. The videotapes were provided to the jury during 1 In 11 Del. C. § 3507, it is provided as follows: (a) In a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value. (b) The rule in subsection (a) of this section shall apply regardless of whether the witness' in-court testimony is consistent with the prior statement or not. The rule shall likewise apply with or without a showing of surprise by the introducing party. (c) This section shall not be construed to affect the rules concerning the admission of statements of defendants or of those who are codefendants in the same trial. This section shall also not apply to the statements of those whom to cross-examine would be to subject to possible self-incrimination. 4 their deliberations. Defense counsel did not object to such. During her closing argument, the prosecutor urged the jury members to view the videotapes during their deliberations. Transcript of April 30, 2001, Trial Proceedings at CC- 97; CC-112; and CC-114 ( April 30, 2001, Trans. at CC-___ ). The jury apparently viewed the videotapes. April 30, 2001, Trans. at CC-117. I now turn to the motion itself. The first step the Court takes when reviewing a Rule 61 motion is to determine if any procedural bars exist; the Court only considers the merits of claims which Rule 61(i)2 does not 2 The version of Superior Court Criminal Rule 61(i) applicable to defendant s case provides as follows: Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court. (2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim in warranted in the interest of justice. (3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows (A) Cause for relief from the procedural default and (B) Prejudice from violation of the movant s rights. (4) Former adjudication. Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice. (5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. 5 bar procedurally. Younger v. State, 580 A.2d 552, 554 (Del. 1990). Defendant s claims are barred procedurally. First, they are time-barred; they were not brought within three years after judgment of conviction became final. Rule 61(i)(1). They also are barred because defendant failed to assert them in the first motion for postconviction relief. Rule 61(i)(2). Defendant may overcome the procedural default by showing the existence of a colorable claim of a miscarriage of justice as the result of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. [Footnote omitted.] Couch v. State, Del. Supr., No. 217, 2007, Berger, J. (Feb. 14, 2008) at 2 (citing Superior Court Criminal Rule 61(i)(5)). Accord Lindsey v. State, Del. Supr., No. 375, Ridgely, J. (Jan. 8, 2008) at 3. Ineffective assistance of counsel is encompassed within the miscarriage of justice category and the mere invocation of that term is sufficient to prevent a cursory dismissal on procedural grounds. See Felton v. State, Del. Supr., No. 364, 2007, Holland, J. (Feb. 1, 2008) at 3. However, if a defendant fails to establish a claim of ineffective assistance of counsel, then the claim does not ... constitute a `miscarriage of justice Elliott v. State, 783 A.2d 124 (Del. 2001). In other words, merely alleging ineffective assistance of counsel is not sufficient to surmount the procedural bars. Instead, a defendant has the burden of establishing a (i) deficient performance by his trial counsel (ii) which actually caused the defendant prejudice. Strickland v. Washington, 466 U.S. 668 (1984). Deficient performance means that the attorneys' representation of defendant fell below an objective standard of reasonableness. Id. at 688. In considering post-trial attacks on counsel, Strickland cautions judges to review the counsel s performance from the trial counsel s perspective at the time decisions were being made. Second guessing or Monday morning quarterbacking should be 6 avoided. Id. at 689. The burden of showing the prejudice aspect is addressed in Couch v. State, supra at 3: In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that, but for his counsel s professional errors, there is a reasonable probability that the outcome of the proceedings would have been different. The defendant must make concrete allegations of actual prejudice, and substantiate them, or risk summary dismissal. [Footnotes and citations omitted.] With these standards in mind, I discuss defendant s various claims. Claim 1 In his first claim, defendant asserts the following: DIDN T PROTECT MY RIGHTS UNDER DUE PROCESS BY NOT MAKING PROSECUTOR ADHEAR [sic] TO STATUTE 3511 WHICH DICTATES THE PROCEDURES TO BE FOLLOWED IN VIDEO TAPING OF CHILD WHITNESSES [sic]; WHICH IS AN ESTABLISHED RIGHT UNDER DELAWARE LAW WHICH SHOWS A CONFLICK [sic] OF INTEREST IN ATTORNEYS [sic] PART NOT TO PROTECT HIS CLIENTS [sic] RIGHTS. ALSO ALLOWING THE ILLEGAL VIDEO TAPE TO BE PRESENTED NOT ONLY AT TRIAL BUT IN JURY DELIBERATION. Testimony from states [sic] whitness [sic] backsup [sic] this ground as seen in transscipts [sic] as to who was present and who asked the questions. To support his claim that the procedural bars do not apply, defendant asserts: Movant s first allegation is that his attorney was not present during a critical stage of his trial when prosecutor and her team solicitated [sic] testimonial evidence to be used against him, and eventually was the key evidence, the Supreme Court of the United States has ruled that taking of ellicitated [sic] evidence that is testimonial is a critical stage it also has ruled in White v. Maryland 83 S.Ct. 1030 `that denial of counsel at a critical stage is automatic reversal. Without first reviewing the procedural bars, the Court outright denies any claims based upon violations of 11 Del. C. § 35113 because the statute is not applicable. The videotapes were 3 In 11 Del. C. § 3511, it is provided: (a) In any criminal case or hearing on delinquency, upon motion of the Deputy 7 not depositions. They were taped interviews of the victim and her sister taken at the CAC. Since Attorney General prior to trial and with notice to the defense, the court may order all questioning of any witnesses under the age of 12 years to be videotaped in a location designated by the court. Persons present during the videotaping shall include the witness, the Deputy Attorney General, the defendant's attorney and any person whose presence would contribute to the welfare and well-being of the witness, and if the court permits, the person necessary for operating the equipment. Only the attorneys or a defendant acting pro se may question the child. The court shall permit the defendant to observe and hear the videotaping of the witness in person or, upon motion by the State, the court may exclude the defendant providing the defendant is able to observe and hear the witness and communicate with the defense attorney. The court shall ensure that: (1) The recording is both visual and oral and is recorded on film or videotape or by other electronic means; (2) The recording equipment was capable of making an accurate recording, the operator was competent to operate such equipment and the recording is accurate and is not altered; (3) Each voice on the recording is identified; (4) Each party is afforded an opportunity to view the recording before it is shown in the courtroom. (b) If the court orders testimony of a witness taken under this section, the witness may not be compelled to testify in court at the trial or upon any hearing for which the testimony was taken. At the trial or upon any hearing, a part or all of the videotaped deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence. If only a part of a deposition is offered in evidence by a party, an adverse party may require the party to offer all of it which is relevant to the part offered and any party may offer other parts. Objections to deposition testimony or evidence or parts thereof and the grounds for the objection shall be stated at the time of the taking of the deposition. (c) The witness need not be physically present in the courtroom when the videotape is admitted into evidence. (d) The cost of such videotaping shall be paid by the court. (e) Videotapes which are part of the court record are subject to a protective order of the court for the purpose of protecting the privacy of the witness. 8 this statute does not apply in any manner, all claims of ineffective assistance of counsel based on it are denied. Defendant s next claims are that trial counsel was ineffective by allowing the videotapes to be presented at trial and during jury deliberations. As noted earlier, trial counsel objected to the admission of the videotapes. Defendant fails to specify on what basis trial counsel was ineffective regarding the admission of the tapes. This failure to be specific is fatal to this claim. Younger v. State, 580 A.2d at 555; Couch v. State, supra. The argument that trial counsel was ineffective for failing to object to the submission of the videotapes to the jury during its deliberations bears discussion.4 Not objecting to the videotape s submission to the jury for viewing during deliberations was in accordance with decades of practice and jurisprudence . Flonnory v. State, 893 A.2d 507, 529 (Del. 2006). Although the law remains that the jury can view videotapes of witnesses, the Supreme Court has modified the law since the case against defendant was tried in 2001. The Supreme Court set forth a default rule in Flonnory v. State, 893 A.2d at 526-27: [T]he default rule is that written or tape or video-recorded § 3507 statements should not be admitted into evidence as separate trial exhibits that go with the jury into the jury room during deliberations although the statements may be played or read to the jury in the first instance during the course of trial (provided, of course, that the other § 3507 requirements are satisfied.) The trial judge does, however, have discretion to depart from this default rule when in his judgment the situation so warrants (e.g., where the jury asks to rehear a § 3507 statement during its deliberations or where the parties do not object to having the written or recorded 4 In fact, trial counsel referenced the videotape during his closing argument in support of the defense s argument that the victim was not truthful. April 30, 2001, Trans. at CC-110-11. Thus, as was the situation in Flonnory v. State, 893 A.2d 507, 531 n. 61 (Del. 2006), the defense wanted the jury to give emphasis and credence to that portion of the testimony. 9 statements go into the jury room as exhibits).5 The trial judge s broad discretion in these circumstances is coextensive with his discretion to allow or to refuse to allow the jury to rehear in-court trial testimony of any witness. [Emphasis in original. Footnotes and citations omitted.] As the Court further explained at page 530: By whatever form an application may be made to allow a § 3507 statement into the jury room (whether on the motion of a party or at the request of a jury) the trial judge must weigh the relative prejudice to the parties against the danger of unfairly emphasizing one piece of testimonial evidence over that of all other testimonial evidence. [Footnote and citation omitted.] The practice at the time of the trial was to allow the videotapes to go to the jury without objection. Thus, trial counsels performances were not deficient when they did not object to the submission of the videotapes to the jury. State v. Cousins, Del. Super., Def. ID# 0002004173, Graves, J. (Nov. 25, 2003) at 14, aff d, Cousins v. State, Del. Supr., No. 593, 2003, Steele, J. (May 13, 2004). However, even if the Court ruled that trial counsel should have lodged an objection, defendant has failed to show prejudice. Id. He has failed to show that even if an objection had been lodged, the Court would not have allowed the jury to view the videotapes and that the outcome of the proceedings would have been different if the jury had not viewed the videotapes. Claim 2 Defendant next alleges: BY ALLOWING HEARSAY EVIDENCE INTO THE TRIAL UNDER 801, 3507 AND 3511 PROCEDURES WERE NOT FOLLOWED TO ADHEAR [sic] TO DEFENDANTS [sic] RIGHTS TO DUE PROCESS AS INDICATED IN 5 If there is no objection, then a claim of error is waived and it is within the trial court s discretion to allow the jury to consider the recording during its deliberations. Jones v. State, Del. Supr., No. 482, 2005, Ridgely, J. (Dec. 12, 2007) at 24-5; Page v. State, 934 A.2d 891 (Del. 2007); Fahmy v. State, Del. Supr., No. 174, 2006, Jacobs, J. (Oct. 5, 2006) at 4-5. 10 DELAWARE SUPREME COURTS [sic] NOTATION THAT TESTIMONY VIDEO TAPED CAN NOT COME INTO TRIAL UNLESS CHILD WHITNESS [sic] DOES NOT TESTIFY. ... In support of his contention that the procedural bars do not apply, he argues: Movant s second argument only brings out the ruling already indicated by the Delaware Supreme Court that it is a miscarriage of justice to allow testimonial testimony into a trial when the alleged victim testifies which happened in case at hand. This claim repeats the allegations set forth in the first claim. For the same reasons as I denied the first claim, I deny these claims. Claims 3 and 4 Defendant s third and fourth arguments are as follows: 3. LOSING ATTORNEY-CLIENT LOYALTY WHEN PROMISED THE JUDGE NOT TO FILL [sic] ANY PAPER WORK AGAINST HIM IN AN APPEAL FOR ERROR EVEN IF IT HAD MERIT. 4. ALL INDICATION [sic] SAY THAT IF AN ATTORNEY SEES OR HEARS OF ILLEGAL ACTIONS BY ANOTHER ATTORNEY HE IS TO BRING IT TO THE ATTENTION OF AUTHORITY. PLAINTIFF AND HIS WIFE BROUGHT INFORMATION TO HALLER THAT THERE WAS WHITNESS [sic] TAMPORING [sic] AND BRIBERY WITH RESPECT TO BIOLOGICAL FATHER AND HIS GIRLFRIEND AFTER MEETING WITH THE PROSECUTOR. INSTEAD OF BRINGING IT TO THE COURTS [sic] ATTENTION HALLER TALKED TO THE PROSECUTOR AND TOLD DEFENDANT NOTHING COULD BE DONE BECAUSE IT HAD TO GO THROUGH THE PROSECUTOR S OFFICE AND HE BELIEVED SHE WAS THE FOUNDATION OF THOSE INCIDENTS AND NOTHING WOULD EVER BE DONE. In support of his contention that the procedural bars do not apply, defendant alleges: Movant s third and fourth allegation [sic] definitely shows where defense attorney abandoned his client for what ever [sic] reason and did not address the issue that would protect his client s rights. Under Strickland an undisputed violation of the sixth Amendment. 11 The third claim is so unclear that I cannot address it. Thus, I deny it as being too vague for consideration. Younger v. State, 580 A.2d at 555; Couch v. State, supra. The fourth claim, also, is too conclusory to be addressed. I deny it for those reasons. Younger v. State, 580 A.2d at 555; Couch v. State, supra. Claim 5 Defendant s fifth argument states: NOT PROTECTING DEFENDANTS [sic] RIGHT TO DUE PROCESS AND A FAIR TRIAL; TESTIMONIAL EVIDENCE INTO JURY DELIBERATION Delaware Supreme Court said that statements made by alleged victum [sic] was testimonial and could not be admitted into evidence as long as witness did testify making those statements illegally used/ also testimonial evidence introduced brought into jury room for deliberation without defendant or his attorney presence [sic] or their permission a violation of due process again not protected by actions of defendants [sic] attorney. In support of arguing the procedural bars do not apply, he argues: Movant s fifth allegation addresses again the prospect of not allowing an attorney to represent his client at a critical stage of his trial. First the courts have already decided that not [sic] testimonial evidence is allowed into the jury room during deliberation. By allowing this testimony into the jury deliberation is is [sic] automatically assumed prejudice seeing it was done behind closed doors with not [sic] control as to their viewing. This argument is the same argument as was advanced in the first claim. I deny it for the same reasons. Claims 6 through 8 In arguments six through eight, defendant asserts: 6. Defendants [sic] attorneys [sic] inexcusable denial of his right to see and dicuss [sic] the PSI report to make sure all information included was correct so any rehabilitation could be handed out properly via Department of Correction. 12 VIOLATING DUE PROCESS NOT ONLY UNDER DEAWARE [sic] BUT UNITED STATES CONSTITUTION. 7. Again defendants [sic] attorney not providing information to the proper authorities - threatning [sic] of witnesses to testify / attorney was told that the prosecuting team had threatned [sic] the the [sic] whitnesses [sic] to testify and any action taken to void this action would result in action by the state to take the children from their home. Attorney talked again to prosecutor and said nothing could be done again violating defendants [sic] due process making attorney ineffective. 8. It is well established that violation of due process may result in overturn of ones [sic] case and had the defendants [sic] attorney challanged [sic] on direct appeal those actions listed above petitioner would have been granted a new trial or atleast [sic] an evidentiary hearing. It is also known that if defendants [sic] attorney did not bring these actions to the proper authorities it not only makes him ineffective but violates his promise to uphold justice and to protect his clients [sic] rights. ALL THESE ACTIONS LISTED ABOVE AND THE ARGUMENTS USE [sic] IN POSTCONVICTION THAT DEFENDANT ALREADY ARGUED IN PREVIOUS CASES, THAT WERE PROCEDURALLY BARRED, IF THEY WOULD HAVE BEEN BROUGHT TO THE COURTS [sic] ATTENTION AT THE DIRECT APPEAL THERE IS A POSSIBILITY THE CASE WOULD HAVE BEEN REMANDED OR AT THE VERY LEAST HAD AN EVIDENCIARY [sic] HEARING. To support his contention the procedural bars do not apply to arguments six through eight, he argues: Movant s rights were violated in six to eight in a way that did not allow defendant to obtain the given rights allowed him under the law. By his counsel not protecting those rights the defendant was denied due process and fairness, reliability, integrity and fundamental legality all bars to time or any other procedural bar. The sixth argument is that trial counsel was ineffective for not reviewing the PSI Report with him. Defendant has not established the prejudice prong. He has not shown (or even attempted to show) that the sentence imposed would have been any different from that which was imposed even if his attorney had reviewed the PSI Report with him. This claim fails for that 13 reason. The seventh claim, again, is vague and conclusory. Due to the absence of specifics, this Court denies it. Younger v. State, 580 A.2d 555; Couch v. State, supra. Defendants final claim is that trial counsel was ineffective by not raising issues on appeal. Defendant has failed to establish prejudice. He has made no attempt to show how he would have been successful on any issue he has raised. Thus, he has not shown that the outcome would have been other than what it was. Thus, this claim fails. For the foregoing reasons, the Court denies defendant s second motion for postconviction relief. In conclusion, the Court rules as follows. 1) The Court VACATES its order of December 14, 2007; 2) The Court DENIES defendant s second motion for postconviction relief. IT IS SO ORDERED. Very truly yours, Richard F. Stokes cc: Prothonotary s Office Melanie Withers, Esquire Office of the Public Defender 14

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