DAMON STUCKEY V. COMMONWEALTH OF KENTUCKY
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DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
AS MODIFIED: FEBRUARY 10, 2009
RENDERED : JANUARY 22, 2009
NEST T~ rBE PUBLISIJED
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2007-SC-000672-MR
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DAMON STUCKEY
V.
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
NOS . 05-CR-002507 AND 07-CR-002076
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART AND REVERSING IN PART
After a jury trial, Appellant was found guilty of first-degree robbery (two
counts), first-degree assault, possession of a handgun by a convicted felon,
third-degree terroristic threatening, and being a persistent felony offender in
the second degree, and he was sentenced to thirty-two years in prison . On
appeal, Appellant raises four issues, but none constitute reversible error for his
felony convictions . Therefore, even though Appellant's misdemeanor conviction
for terroristic threatening is reversed, his felony convictions are affirmed .
I . Background
On June 30, 2005, Joseph McPherson, a 72 year-old man, was carjacked
and shot in the legs, requiring surgery under general anesthesia . When police
first arrived at McPherson's home, he was lying on the curb and told the
officers that his black Cadillac had On-Star vehicle tracking. McPherson died
of unrelated cancer before the trial in this case and was unable to testify about
C.
his injuries, although 200 pages of his medical records were introduced into
evidence.
Soon after McPherson's Cadillac was stolen, it was used to drive to the
residence of Shervon Robinson . As Robinson got in her van in front of her
residence, and while her two young children sat in the back seat, a man she
later identified as Appellant robbed her and stole her purse at gunpoint . When
she told the robber she did not have any money in her purse, he threatened to
kill her and her children, and so she turned over the purse . The robber did not
wear a mask and when he ordered Robinson to get out of the "damn car" and
demanded that she turn over her purse, he was standing directly in front of her
face . After he left, Robinson called 911 and gave a brief description of the
robber, the car he was driving, and part of the license plate number . She gave
a more detailed description of the robber when police arrived on the scene, and
she recalled that the gun used by the robber was black without a barrel .
Using On-Star, the Cadillac was soon located at an apartment complex
within 75 yards of the apartment of Appellant's mother. Detective Kenneth
Nauert determined that Appellant was a possible suspect, and he returned to
the station to put together a photo-pack, which Robinson used to identify
Appellant. Detective Nauert contacted Appellant's mother at her apartment,
and she told him that Appellant did not live at her apartment . After securing a
search warrant, her apartment was searched and two unopened letters
addressed to Appellant at that apartment (one undated, and the other a year
old) were recovered . Even though Appellant was not present when his mother's
apartment was searched, his brother Desmond was present and was arrested
2
for possession of a firearm by a convicted felon . The gun recovered at the
apartment had a black handle and a silver barrel, which was different from the
black gun without a barrel described by Robinson . A photograph of the gun
recovered from the apartment was introduced at trial.
The next day, after Detective Nauert sent a wanted poster for Appellant
through the police department e-mail system, he received information that
police unsuccessfully chased a vehicle believed to be occupied by Appellant.
Over a week later, police received information that Appellant was at a specific
house, and they surrounded it, called for his exit with a public address system,
and as the occupants left the house, he was the last to emerge and was
arrested .
At trial, Appellant called his mother as a witness . Among other things,
she testified that Appellant did not live at her apartment, that the gun found at
her apartment was silver, and that it was Desmond's .
Appellant was convicted by a jury and sentenced to thirty-two years in
prison . His appeal to this Court, therefore, is a matter of right. Ky. Const. §
110(2)(b) .
II. Analysis
A. Character Evidence
Appellant's first claim of error is that he was substantially prejudiced in
two different ways by the introduction of inadmissible character evidence under
KRE 404(a) and KRE 404(b), through familial propensity evidence and other
crimes evidence of his brother. While cross-examining Appellant's mother and
over Appellant's objection, the Commonwealth introduced a photograph of a
3
gun belonging to Appellant's brother Desmond that was recovered in the search
of the mother's apartment, in addition to evidence that at the time of the trial
Desmond was incarcerated . Even though evidence of Desmond's current
incarceration was irrelevant and inadmissible, when Detective Rick Polin was
on the stand and Appellant tried to point the finger for the robberies at
Desmond, Appellant opened the door to the Commonwealth introducing a
photograph of Desmond's gun .
While cross-examining Detective Polin, counsel for Appellant elicited that
Desmond was present and was arrested when the apartment of Desmond and
Appellant's mother was searched . On re-direct examination, the
Commonwealth elicited that Desmond was arrested for possession of a
handgun by a convicted felon and not for the two robberies. On re-cross
examination, counsel for Appellant had Detective Polin confirm that Desmond
was arrested and that Desmond admitted the gun found in the apartment was
his. Thus, since counsel for Appellant brought up the issue of Desmond's
arrest and his possession of a gun taken by the police on the day of the
robbery, it appeared to the Commonwealth that Appellant was trying to blame
Desmond for the robberies because he was arrested very near McPherson's
stolen vehicle and he was in possession of a gun similar to the gun described
by the second victim, Robinson .
Appellant objects that the above evidence was impermissible character
evidence because it showed a sort of familial propensity to commit crimes in
violation of KRE 404(a), in addition to it being impermissible other crimes
evidence under KRE 404(b) . First, though Appellant argues that the
4
Commonwealth introduced evidence about Desmond to show evidence of
Appellant's character through a familial propensity to commit crimes, this
argument has no merit because evidence of Appellant's character was not
introduced, in addition to the fact that Appellant opened the door to this line of
attack by attempting to implicate his brother . As Professor Lawson has noted:
[The] concept commonly known as "opening the door" involves a
somewhat broader form of waiver. It is typically described as
follows:
The term "opening the door" describes what
happens when one party introduces evidence and
another introduces counterproof to refute or contradict
the initial evidence . . . . If the first party objects to the
counterproof, or loses the case and claims error in
admitting it, typically the objection or claim of error is
rejected because he "opened the door."
Robert G. Lawson, The Kentucky Evidence Law Handbook § 1 .10[5], at 43 (4th
ed. 2003) (quoting 1 Mueller 8v Kirkpatrick, Federal Evidence § 12 (2d ed . 1994)
(footnote omitted) (omission in original) .
Second, similar to Appellant's first character evidence claim, the "other
crimes" evidence of which Appellant complains was introduced against
Desmond, not Appellant, and it does not fall under KRE 404(b), in addition to
the fact that it was only introduced after Appellant had opened the door.
Appellant elicited that Desmond was present and arrested when their mother's
home was searched, thus opening the door to the Commonwealth clarifying
that Desmond's arrest was for other crimes and not for the robberies Appellant
was standing trial for.
Since Appellant opened the door on these issues through his attempt to
shift blame for the robberies to his brother, the Commonwealth was justified in
introducing evidence to rebut Appellant's theory. One of the victims, Robinson,
testified that the robber's gun was black with no barrel . The mother of
Desmond and Appellant testified that Desmond's gun was silver, and the
photograph of the gun introduced into evidence showed it had a black handle,
but a silver barrel. Therefore, the photograph was relevant to show that
Robinson's description of the robber's gun did not match Desmond's gun, and
it helped to show the identity of the robber (as Appellant and not Desmond) . In
fact, the Commonwealth used the photograph of Desmond's gun along with
Robinson's testimony in its closing argument to show that Desmond's gun was
not the one used in the robberies and that Desmond was not the robber .
In addition, since Desmond was not called to testify by the defense at
trial, the Commonwealth introduced evidence that Desmond was currently
incarcerated . Even though Appellant had attempted to implicate Desmond for
the robberies, the fact he was incarcerated at the time of trial was not relevant
to show that he could have been called to testify by the defense, but that he
was not. However, there is no reasonable possibility this affected the verdict
and therefore this error was harmless .
Even though the introduction of this evidence may have cast Appellant in
a bad light, its primary purpose was to directly contradict Appellant's theory
that Desmond committed the robberies. Therefore, Norris v. Commonwealth,
89 S.W.3d 411 (Ky. 2002), and Jarvis v. Commonwealth, 960 S.W .2d 466 (Ky.
1998), are distinguishable . In Norris , "the evidence of Mrs . Norris's alleged
incest with Ronnie Jr . was inadmissible character evidence. It did nothing
more than insinuate that Appellant was probably guilty of incest with his
6
daughter because everybody in the family routinely committed incest with each
other." Norris , 89 S.W.3d at 415 (emphasis added) . In Jarvis, "the
Commonwealth did not introduce any evidence" that testimony regarding the
buying of a controlled substance "played any part in [the victim's] death" and
this Court concluded, "The evidence was only used to paint Jarvis in a bad
light. The evidence should have been excluded under KRE 404 ." Jarvis, 960
S .W .2d at 471 (emphasis added) . The evidence offered by the Commonwealth
against Appellant's brother, if it was character evidence at all, was also offered
to rebut Appellant's theory that Desmond committed the robberies . The
evidence was neither "nothing more" nor was it "only used" to show a
propensity to commit the robberies by Appellant.
8. Discovery Violation and Evidence of Flight
Appellant's second claim of error is that the Commonwealth intentionally
withheld information subject to discovery, and thus when Detective Polin
testified about a phone conversation he had with the Appellant, the
Commonwealth was able to benefit from its discovery violation by putting
additional evidence of flight before the jury. Even though the Commonwealth
concedes that the prosecutor had in fact failed to disclose the phone call that
occurred between Detective Polin and Appellant when the officer told the
prosecutor on the morning of trial about the call, the Commonwealth argues on
appeal that this evidence was only brought up on re-direct examination in
order to correct the earlier response to a question asked by the defense and
that the trial court's sustaining of the defense's objection was sufficient to cure
any error. Further, it argues that a mistrial was unnecessary . This Court
7
finds the Commonwealth violated its discovery obligations, but, in this case,
the trial court's exclusion of the substance of the conversation was sufficient to
cure the error .
As an initial matter, the Commonwealth had a continuing duty to provide
discovery. RCr 7 .24(8) . This duty required the Commonwealth to turn over
"any oral incriminating statement known by the attorney for the
Commonwealth to have been made by a defendant to any witness. . . ." RCr
7 .24(1) ; Jefferson Rules of Practice Rule 803(A)(3) . Contrary to the finding of
the trial court, the Appellant's conversation with Detective Polin was evidence
of flight (and thus evidence of guilt) . In Rodriguez v. Commonwealth , 107
S .W .3d 215, 219 (Ky. 2003), this Court noted the historical basis for admitting
evidence of flight : "This common-law rule is based on the inference that the
guilty run away but the innocent remain . .
The three instances of "flight" claimed in this case are: first, testimony
from Detective Nauert that police unsuccessfully chased a vehicle it believed
was occupied by Appellant soon after the robberies ; second, testimony from
Lieutenant Colbert that when Appellant was eventually arrested, the police
surrounded the house and called for him, and he was the last man to exit; and
third, Detective Polin's reference to a phone conversation that occurred
between him and Appellant soon after the robberies . Appellant argues on
appeal that introduction of the fact that this conversation occurred constitutes
reversible error.
Evidence of flight passes the KRE 401 relevancy test . "By definition, the
common-law rule regarding the admissibility of evidence of flight is a rule of
8
relevancy. That is, evidence of flight is admissible because it has a tendency to
make the existence of the defendant's guilt more probable: a guilty person
probably would act like a guilty person ." Id . Therefore, testimony that
Appellant was unsuccessfully chased by police soon after the robberies and
that he was the last to emerge from a surrounded house when he was arrested
was relevant. See KRE 401 ("[E]vidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence .") . Here,
the first two instances of flight described above were relevant and admissible,
but the basis for the Commonwealth's third flight argument-that Appellant
spoke to Detective Polin, but refused to turn himself in and told him "good
luck" in catching him-was not produced in discovery, and thus it was not
admissible .
Though on appeal the Commonwealth relies on Brady v. Maryland , 373
U .S . 83 (1963), the statement at issue in this case is inculpatory, and thus
subject only to the discovery rules. Under these rules, however, the
Commonwealth's purported justification that it only brought up the
conversation on re-direct examination does not change the fact that it was
evidence offered by the Commonwealth in violation of the discovery rules . This
Court passed upon the same issue recently in Chestnut v. Commonwealth, 250
S .W.3d 288, 297 (Ky. 2008), where "[t]he Commonwealth assert[ed] that even if
the failure to disclose the statements was a discovery violation, the statements
could be used in rebuttal ." This Court responded, "the duty of discovery
imposed by RCr 7 .24(1) to disclose incriminating statements does not end at
9
the close of the Commonwealth's case in chief. Rebuttal does not offer a
protective umbrella under which prosecutors may lay in wait." Id .
In Chestnut, this Court read RCr 7 .24 in line with its plain meaning and
held that an incriminating oral statement by a defendant does not have to be
written down in order to be subject to discovery. Id. at 296 ("[W]e find that it is
apparent from a reading of the language of the rule that RCr 7.24(1) was
intended to apply to both oral and written statements, which were
incriminating at the time they were made .") . Therefore, the "nondisclosure of a
defendant's incriminating oral statement by the Commonwealth during
discovery constitutes a violation of the discovery rules under RCr 7.24(1), since
it was plainly incriminating at the time it was made." Id . This is clearly the
case here, since part of the Commonwealth's case relied on evidence of
Appellant's flight . However, the analysis does not end here ; "[t]he United
States Supreme Court has held that a discovery violation serves as sufficient
justification for setting aside a conviction when there is a reasonable
probability that if the evidence were disclosed the result would have been
different." Id . at 297.
During re-direct examination by the Commonwealth, Detective Polin
said, "We talked on the phone," and a proper and timely objection was made.
Though the Commonwealth put the fact that Detective Polin and Appellant
spoke soon after the robberies before the jury, it was not permitted to delve into
the substance of the conversation . Thus, the jury did not hear that when Polin
told Appellant he was looking for him, Appellant told him "good luck" and that
he was not turning himself in. The jury only heard that Detective Polin spoke
10
to Appellant without disclosing the contents of the conversation . The trial
court granted the defense's motion to exclude the contents of the phone
conversation and denied the defense's motion for a mistrial . This was the
correct course of action under these circumstances, and any prejudice was
cured by excluding the conversation's contents .
Here, the fact that this conversation took place (without the disclosure of
the contents of the conversation) is insufficient for this Court to find it
reasonably likely that had the evidence been disclosed the result of the trial
would have been different. In addition to the eyewitness testimony of one of
the victims and the fact that the stolen car was found very near Appellant's
mother's home, there were two other instances of flight tending to show
consciousness of guilt .
Even though the Commonwealth violated the discovery rules, the trial
court was not required to declare a mistrial . "Whether to grant a mistrial is
within the sound discretion of the trial court, and `such a ruling will not be
disturbed absent . . . an abuse of that discretion ."' Bray v. Commonwealth ,
177 S.W.3d 741, 752 (Ky. 2005) (quoting Woodard v . Commonwealth, 147
S .W .3d 63, 68 (Ky. 2004)) . "A mistrial is an extreme remedy and should be
resorted to only when there appears in the record a manifest necessity for such
an action or an urgent or real necessity." Id. Here, the trial court denied the
defense's motion for a mistrial, and it did not abuse its discretion under the
circumstances, given the amount and types of additional evidence against the
Appellant. Id . The trial court correctly excluded the conversation, and
properly did not declare a mistrial.
C. Evidence of Serious Physical Injury
Appellant's third claim of error is that there was insufficient evidence to
support a serious physical injury as required for a conviction of first-degree
assault. During the first robbery, Joseph McPherson was shot in the leg and
wounded . Though he remained conscious after he was shot, the 72-year-old
victim was taken to the hospital where he was placed under general
anesthesia . The bullet had traveled through his left thigh, fracturing his
femur, and it then continued into his right calf. His bullet wounds were
cleaned, surgery was performed on his patella tendon, and a surgical nail and
screws were used to repair his femur. The next day he was able to walk twenty
feet with a walker, and by the third day after surgery he was able to walk forty
feet with a walker. He was discharged to a rehabilitation center five days after
having surgery. Because McPherson died of unrelated cancer before
Appellant's trial, he was unable to testify about his injuries .
Since the Commonwealth did not call anyone else with personal
knowledge of McPherson's injury, Appellant argues that the 200 pages of
medical records introduced into evidence regarding McPherson's shooting
injury were insufficient to support the severity of injury required for first-degree
assault . First-degree assault requires serious physical injury, which "means
physical injury which creates a substantial risk of death, or which causes
serious and prolonged disfigurement, prolonged impairment of health, or
prolonged loss or impairment of the function of any bodily organ." KRS
500 .080(15) . Physical injury "means substantial physical pain or any
impairment of physical condition." KRS 500 .080(13) .
12
Appellant cites Prince v. Commonwealth, 576 S .W.2d 244, 246 (Ky. App.
1978), for the proposition that the infliction of serious physical injury requires
"a fairly strict level of proof." Prince , however, also notes that this level of proof
"must be met by sufficient evidence of injury, medical and/or non-medical,
taken as a whole, before an instruction on first-degree assault may be given ."
Id. Here, 200 pages of medical records recounting the nature of his injuries
and the medical procedures to treat them provided ample evidence, as a whole,
for an instruction on first-degree assault . "The seriousness of a physical injury
depends upon the nature of the injury as well as the victim's characteristics."
Schrimsher v. Commonwealth, 190 S .W.3d 318, 329 (Ky. 2006) . At 72 years of
age, McPherson suffered a bullet wound in both legs and was put under
general anesthesia, a dangerous procedure for anyone, but especially for a man
of advanced age. Even though there was no testimony or evidence about
McPherson's condition after his initial hospital stay, the jury did see the
medical records from the initial stay. The records showed that his bullet
wounds were cleaned, his leg was repaired with a surgical nail and screws, he
was using a walker, and he was sent to a rehabilitation center. Under these
circumstances, the medical records were sufficient for the jury to be instructed
McPherson would have a "prolonged impairment of health" sufficient to satisfy
the required serious physical injury for first-degree assault.
The situation here is different from cases like Luttrell v. Commonwealth,
554 S .W.2d 75, 77 (Ky. 1977), cited by Appellant, where a police officer was
shot in the chest with bird shot and spent five days in the hospital and six
weeks recuperating for "superficial" injuries . In Luttrell , this Court noted,
"While Officer Phillips suffered from his wounds he was not seriously injured in
the statutory sense ." Id. at 78-79. Though one can be expected to make a full
recovery from a "superficial" bird shot wound, the bullet in this case broke
McPherson's leg, requiring it to be held together with pins and screws .
McPherson's injury caused "prolonged impairment of health" that a reasonable
jury could believe he may never have healed from at his age. Therefore, it was
correct to instruct the jury in this case on assault in the first degree .
D. Terroristic Threatening
Appellant's fourth claim of error is that the Commonwealth failed to
prove he committed the misdemeanor offense of third-degree terroristic
threatening within twelve months of the indictment . Appellant acknowledges
this claim was not argued before the trial court and asks that it be reviewed
under the palpable error rule, RCr 10.26 .
The Commonwealth concedes that no evidence was presented to the jury
concerning when the indictment was returned. Additionally, it concedes that
there was no evidence upon which the jury could have found the misdemeanor
offense was committed within twelve months of the indictment . The
Commonwealth claims, however, that even though Appellant's misdemeanor
conviction was based upon insufficient evidence, it should be upheld because it
does not cause a manifest injustice which this Court recently clarified is the
key in defining a palpable error under RCr 10 .26. Martin v. Commonwealth,
207 S .W.3d l, 3 (Ky. 2006) .
In Schoenbachler v. Commonwealth, 95 S .W .3d 830, 836-37 (Ky. 2003),
this Court considered an unpreserved insufficiency issue. As here, in
Schoenbachler, "Appellant admit[ted] that he failed to properly preserve the
issue he presents [on appeal] ." Id . at 836. This Court described the law as
follows:
A palpable error is one that "affects the substantial rights of a
party" and will result in "manifest injustice" if not considered by
the court, and "[w)hat it really boils down to is that if upon a
consideration of the whole case this court does not believe there is
a substantial possibility that the result would have been any
different, the irregularity will be held nonprejudicial ." We
recognize not only that "the burden is on the government in a
criminal case to prove every element of the charged offense beyond
a reasonable doubt and that the failure to do so is an error of
Constitutional magnitude, but also that the nature of the error
alleged is such that, if the trial court did, in fact, err by failing to
direct a verdict of acquittal, that failure would undoubtably [sic]
have affected Appellant's substantial rights .
Id. at 836-37 (citations omitted) . After summarizing the law, this Court
concluded that the Appellant's claim of insufficiency of the evidence was a
palpable error. Id. at 837 ("[T]he trial result necessarily would have been
different if the trial court had directed a verdict in Appellant's favor.") . Here, if
the error was corrected at trial it would have resulted in a directed verdict of
acquittal on the third-degree terroristic threatening charge, instead of the
wholly different result of a conviction . Thus, it constitutes a manifest injustice
and was a palpable error. Martin, 207 S .W.3d at 3 ("[T]he required showing is
probability of a different result or error so fundamental as to threaten a
defendant's entitlement to due process of law.") .
Since the Commonwealth concedes there was no evidence offered to
support this misdemeanor conviction, there was no basis for a reasonable juror
15
to find guilt and Appellant was entitled to a directed verdict of acquittal for
terroristic threatening in the third degree. See Commonwealth v . Benham , 816
S.W.2d 186, 187 (Ky. 1991) . Therefore, Appellant's conviction for third-degree
terroristic threatening is reversed .
III. Conclusion
In conclusion, Appellant has not pointed to any errors that require
reversal of his felony convictions .
First, when Appellant tried to point the finger for the robberies at his
brother, Appellant opened the door to a closer examination of the evidence and
circumstances surrounding his brother's arrest. Second, though the
Commonwealth violated the discovery rules in failing to inform the defense of
Appellant's conversation with Detective Polin, the defense asked for exclusion
of the conversation and the trial court granted the motion, curing any error.
Since Detective Polin did not testify about the substance of the conversation,
the error did not create a manifest necessity sufficient to require a mistrial, and
the error was insufficient to create a reasonable probability of a different
outcome . Third, 72-year-old Joseph McPherson's gun shot wound to his legs,
requiring surgery under general anesthesia and the use of a surgical nail and
screws, was sufficient to constitute a serious physical injury for purposes of
first-degree assault. Fourth, since the Commonwealth concedes no evidence
was presented to support Appellant's misdemeanor conviction, the third-degree
terroristic threatening conviction constitutes a palpable error, and is reversed .
However, since the sentence for the misdemeanor conviction was run
concurrently with the other convictions by operation of law, this does not affect
the length of Appellant's sentence of thirty-two years .
For the foregoing reasons, Appellant's conviction and the judgment of the
Jefferson Circuit Court for third-degree terroristic threatening is reversed, but
his felony convictions and the judgment for first-degree robbery, first-degree
assault, possession of a handgun by a convicted felon, and being a persistent
felony offender in the second degree are affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT :
Daniel T. Goyette
Louisville Metro Public Defender
Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202
Cicely Jaracz Lambert
Assistant Appellate Defender
Office of the Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
Jeffrey Allan Cross
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
6*UyrrMr
(~Vurf
of ~irufurhv
2007-SC-000672-MR
DAMON STUCKEY
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
NOS . 05-CR-002507 AND 07-CR-002076
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
On the Court's own motion, the Memorandum Opinion of the Court
rendered January 22, 2009 shall be modified on page 13, lines 1 and 3 . Pages
1 and 13 shall be substituted, as attached hereto, in lieu of pages 1 and 13 of
the Opinion as originally rendered . Said modification does not affect the
holding.
Entered: February 10, 2009 .
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