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Allen v. State (1/22/2016) ap-2485

Allen v. State (1/22/2016) ap-2485


             The text        of   this opinion can be corrected before the opinion is published in the                        

             Pacific Reporter            .   Readers are encouraged to bring typographical or other formal                           

             errors to the attention of the Clerk of the Appellate Courts:    

                                                 303 K Street, Anchorage, Alaska  99501  

                                                                 Fax:  (907) 264-0878  

                                                      E-mail:  corrections@  

                    IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                              


                                                                                                Court  of  Appeals N                  o.  A-11477  

                                                   Petitioner,                               Trial  Court N            o.  3KN-11-1250  CR  



                                                                                                            O  P  I  N  I  O  N  



                                                   Respondent.                                   No. 2485 - January 22, 2016  


                          Petition for Review from the District Court,  Third Judicial  


                          District, Kenai, Sharon A. S. Illsley, Judge.  


                          Appearances:  Kelly R. Taylor, Assistant Public Defender,  


                          and Quinlan Steiner,  Public Defender,  Anchorage,  for the  


                          Petitioner.             Mary  A.  Gilson,  Assistant  Attorney  General,  


                          Office of Special Prosecutions and Appeals, Anchorage, and  


                          Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  the  




                          Before:             Mannheimer,   Chief  Judge,  Allard,  Judge,  and  



                          Hanley, District Court Judge. 


                          Judge MANNHEIMER.  


             Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                          

----------------------- Page 2-----------------------

                                   The defendant, Leta G. Allen, was brought to trial on a charge of driving                                                                                                    

under the influence, but the trial ended without a verdict after the trial judge declared a                                                                                                                                    

mistrial over the objection of the defense attorney.                                                                                  

                                   The State now intends to try Allen again on the same charge, and Allen has                                                                                                             

petitioned   us   to   prohibit   the   second   trial.     Allen   argues   that   there   was   no   manifest  

necessity for the mistrial, and thus the double jeopardy clauses of the federal and state                                                                                                                             

constitutions bar any retrial.                                            1  

                                   As we explain in this opinion, we conclude that a mistrial was manifestly  


required.  The necessity for a mistrial arose from the fact that, during deliberations, one  


member of the jury sent a note to the judge assertingthat another juror (the foreman) had  


committed misconduct in two respects.  According to the juror's report, (1) the foreman  


of the jury drove to the section of the highway where the trooper said he observed  


Allen's  impaired  driving,  for  the  purpose  of  personally  investigating  whether  the  


trooper's description of this area was accurate, and then (2) the foreman reported his  


findings to the other jurors.  


                                   When  the  trial  judge  questioned  the  six  jurors  about  this  alleged  


misconduct, the foreman and three other jurors flatly denied that anything like that had  


happened.                       But the other two jurors declared  unequivocally that the jury had been  


informed of the foreman's personal investigation, and that the jurors (as a group) had  


discussed the foreman's findings.  


                                   Given this situation, if the trial was to continue, the trial judge would be  


required to conduct a further investigation to see who was telling the truth.  And during  



                 See Arizona v. Washington                                              , 434 U.S. 497, 505; 98 S.Ct. 824, 830; 54 L.Ed.2d 717                                                                           

(1978);  Tritt v. State                            , 173 P.3d 1017, 1019 (Alaska App. 2008);                                                                Browning v. State                            , 707 P.2d     

266, 268 (Alaska App. 1985).                                               

                                                                                                           -  2 -                                                                                                     2485

----------------------- Page 3-----------------------

this further investigation, it was inevitable that the six jurors would come to realize that                                                                                                                                                                                                                                                                                                                             

 each sub-group of the jury was implicitly accusing the other of lying to the court.                                                                                                                                                                                                                                                                                                                               

                                                                   Once the jurors realized this, no reasonable judge could hope to obtain a                                                                                                                                                                                                                                                                                          

proper verdict from this jury.                                                                                                                     Thus, a mistrial was manifestly necessary.                                                                                                                                                                               

                                   Underlying   facts:    the basis of the charge against Allen,                                                                                                                                                                                                                                               and Allen's   

                                 defense to this charge                                                     

                                                                   On the afternoon of July 26, 2011, the state troopers received a report that                                                                                                                                                                                                                                                                           

 a woman who appeared to be impaired had just driven away from a local gas station.                                                                                                                                                                                                                                                                                                                                                            

 State Trooper Michael Lorring responded to this report.                                                                                                                                                                                                                               

                                                                   The   report included a description of the woman's vehicle,                                                                                                                                                                                                                                                  and Lorring   

located this vehicle on the highway.                                                                                                                                                      Lorring later testified that,                                                                                                                 as   he   followed the   

vehicle,   it was "sway[ing]" or "bouncing" within its lane of travel,                                                                                                                                                                                                                                                                                 and at one point                                           

Lorring saw the vehicle leave its lane of travel and cross                                                                                                                                                                                                                                             over the fog line onto the                                                                                           

 shoulder of the road.                                                                                    

                                                                   When   the   driver   of   this   vehicle   -   Allen   -   pulled   into   a   parking lot,   

Lorring contacted her.                                                                                         Lorring observed that Allen had bloodshot, watery eyes, that her                                                                                                                                                                                                                                              

 speech was slurred, and that she swayed as she stood.                                                                                                                                                                                                                    And, according to Lorring, Allen                                                                                                        

told   him   that   she   thought   he   was   following   her   because   she   had   driven   over   the  


                                                                   Despite   these   signs   of   impairment,   Allen   did   not   smell   of alcoholic   

beverages.   When Lorring asked Allen if she was taking any medications, Allen said that                                                                                                                                                                                                                                                                                                                                  

 she was taking four:                                                                                Vicodin, Paxil, Trazadone, and Valium.                                                                                                                                                                      

                                                                   Lorring administered field sobriety tests to Allen, and the results indicated                                                                                                                                                                                                                                                

that Allen was impaired.                                                                                                       A subsequent DataMaster test                                                                                                                                      showed that Allen had not                                                                                                 

                                                                                                                                                                                                            -  3 -                                                                                                                                                                                                      2485

----------------------- Page 4-----------------------

consumed   any   alcohol,   but   a   blood   test   showed   the   presence   of   THC   (the   active  

ingredient in marijuana), plus Valium (diazepam) and Trazadone.                                                        

                        Based   on   all   of   this,   the   State   charged   Allen   with   driving   under   the  



                        At  Allen's  trial,  the  State  called  Trooper  Lorring,  who  testified  to  the  


information we have described - including the assertion that Allen had once crossed  


over the fog line of the highway.   But during Lorring's cross-examination  by  Allen's  


attorney, Lorring admitted that no fog line was visible in the photographs of the stretch  


of highway where he purportedly saw Allen cross the fog line.  


                        At  the  end  of the trial, Allen's attorney argued that Allen had not been  


impaired by her medications, and that Allen's unsteadiness and swaying during the field  


sobriety tests were the result of back pain.  And the defense attorney urged the jurors to  


reject  Trooper  Lorring's  testimony,  specifically  reminding  them  that  Lorring  had  


conceded, during cross-examination, that the photographs of the highway did not show  


any fog lines.  


            Underlying facts pertaining to the judge's declaration of a mistrial  


                        Shortly before noon on the final day of Allen's trial, after the trial judge  


instructed the jury,  the jurors retired to  begin  their  deliberations.                                                    During the early  


afternoon, the trial judge received a note from the jury, signed by the jury foreman.  This  


note stated that the jurors were deadlocked - divided three to three.  


                        After some discussion between the judge and the attorneys, it was decided  


that the jurors should be summoned to the courtroom to receive a Fields instruction -  



            AS 28.35.030(a)(1).   

                                                                         -  4 -                                                                   2485

----------------------- Page 5-----------------------

that is, an instruction emphasizing the jurors' duty to meaningfully discuss the case with                                                                                                 

each other for the purpose of reaching unanimous agreement, either for conviction or                                                                                                            




                              But just as that was about to happen, the judge received another note - this  


time from an individual juror.                                            The bailiff told the judge and the attorneys that this  


individual juror had written the note outside the other jurors' presence, and that this juror  


did not want to reveal this communication to the other jurors.  


                              In this note,  the  juror reported that the jury foreman had driven to the  


section of the highway where the trooper said he observed Allen driving across the fog  


line.  According to this juror, the foreman reported to the other jurors that there was no  


fog line there, "so the trooper was not honest and cannot be believed."  


                              After the judge apprised the attorneys of the juror's note, she asked the  


attorneys if they thought that the jury should continue to deliberate.  


                              The prosecutor, concerned that at least some of the jurors were relying on  


information that was not presented in court,  urged the trial judge to conduct further  


inquiry into this matter.                                  But Allen's  attorney opposed the prosecutor's suggestion.  


Instead, the defense attorney asked the judge to summon the jurors and simply inquire  


whether they believed that further deliberations would be fruitful.  


                              The judge decided to follow the defense attorney's suggested course.  She  


summoned the jurors, gave them a Fields instruction, and then, without mentioning the  


individual juror's note, she asked each juror individually whether they thought that the  


group might be able to reach a verdict if given more time.  All six jurors told the judge  




               See Fields v. State                    , 487 P.2d 831,841-42 (Alaska1971) (settingoutthe recommended                                                    

instruction, and holding that a trial judge should give, or re-give, this instruction if the jury                                                                                           

is deadlocked).                    

                                                                                             -  5 -                                                                                       2485

----------------------- Page 6-----------------------

                                                                   After receiving these answers, the judge sent the jurors back to the jury                                                                                                                                                                                                                                                                       

 room,   and then the judge asked the attorneys to take some time and formulate their                                                                                                                                                                                                                                                                                                                         

 positions on what to do next.                                                                                                                   

                                                                   When court reconvened, the prosecutor again urged the judge to ask the                                                                                                                                                                                                                                                                               

jurors about the allegations contained in the individual juror's note.                                                                                                                                                                                                                                                                               The prosecutor   

 argued   that   it   was   necessary   to   find   out   if   the   foreman   had   indeed   engaged   in  

 independent investigation of the case - and, if so, what information the foreman had                                                                                                                                                                                                                                                                                                                                

  shared with the other jurors.                                                                                                               

                                                                   The judge was initially skeptical of this approach.                                                                                                                                                                                           She repeatedly indicated                                                    

 that she thought the jury was hopelessly divided, and that there was no point in making                                                                                                                                                                                                                                                                                                            

 the jury continue.                                                                     But the defense attorney refused to consent to a mistrial, so the judge                                                                                                                                                                                                                                              

 finally   agreed   to   question   the   jurors   further   -   both   to   find   out   exactly   what   had  

 happened and, if misconduct had indeed occurred, to find out if it was curable.                                                                                                                                                                                                                                                                                                                     

                                                                   The jurors were summoned to the courtroom, one by one, beginning with                                                                                                                                                                                                                                                                           

 the foreman.                                                     The judge apprised each juror that she was concerned that the jury might                                                                                                                                                                                                                                                                   

 have received information, outside the evidence presented in court, about the existence                                                                                                                                                                                                                                                                                                   

 or non-existence of a fog line on the stretch of highway in question.                                                                                                                                                                                                                                                                       

                                                                   Here, for example, is the judge's questioning of the foreman:                                                                                                                                                                                                                                             


                                                                                                    The Court:  The Court is concerned that information  


                                                                   from a source other than what was presented at trial may have  


                                                                   entered in to the jury's deliberations, specifically information  


                                                                   as to whether the fog line exists or not.                                                                                                                                                                  Can you tell                                                           me  

                                                                   whether that's happened?                                                                                                       

                                                                                                   Jury Foreman                                                          : Would you repeat that one more time?                                                                                                                              

                                                                                                                                                                                                          -  6 -                                                                                                                                                                                                   2485

----------------------- Page 7-----------------------

                                                        The Court                    :    I'm just trying to figure out if the jury is                                                                  

                                     taking into account information that was not received here in                                                                                                     

                                     court, and entered deliberations.                                                            

                                                        Jury   Foreman :     No.     We   -   no,   everything   -   I  

                                     thought we really                                   did a pretty good job of discussing what                                                             

                                     was presented by the State and - and their witnesses, and ...                                                                                                            

                                                        The Court                   : Okay, ... so, as far as you're concerned, no                                                                    

                                     information   besides what was presented in court has been                                                                                                

                                     discussed by the jury?                                          

                                                        Jury   Foreman :     Not   that   I'm   aware   of,   no.     We  

                                     discussed what was presented.                                                          And we discussed it at quite                                       

                                     some length.                         ...   They're - they've been a good group, and                                                                           

                                     there's been no shouting.                                               It's been very - well, thoughtful                                  

                                     consideration ... .                              

                                                        .   .   .  

                                                        The   Court:    Okay.    Just one more question which I                                                                                           

                                     neglected to ask:                                As far as you're aware, did any juror do                                                                       

                                     any independent investigation in this case?                                                                             


                                                        Jury Foreman :  No.  


                                     But  the  judge's  questioning  of  the  next  juror  elicited  a  significantly  


different response:  


                                                        The Court: The Court is concerned, and [is] just trying  


                                     to figure out, whether or not there's been any discussion of  


                                     any  independent  investigation  by  anyone  regarding,  for  


                                     example, the fog line in this case.  Has there been something  


                                     outside of what was presented in trial discussed by the jury?  


                                                        Second  Juror:                                    We   have  discussed  the  fog  line  




                                                                                                                  -  7 -                                                                                                             2485

----------------------- Page 8-----------------------

                                                                                                The Court                                       :    And I did not ask that question very well.                                                                                                                                                           

                                                                And clearly, a jury is required to base their decision only on                                                                                                                                                                                                            

                                                                what they hear in court.                                                                                       Has there been any discussion about                                                                                                            

                                                                anyone investigating outside of court?                                                                                                                                            ...   Any jurors?                                                            

                                                                                               Second Juror                                                    :    Yes.   

                                                                                                The Court                                      : And I'm not going to ask [you] for names;                                                                                                                            

                                                                I'm   not   interested   in   that.     Was   that   something that                                                                                                                                                                                                was  

                                                                discussed in the group as a whole?                                                                                                                                  

                                                                                               Second Juror                                                      :     It was brought up in the group this                                                                                                                           

                                                                morning, yes.                                                     

                                                                When the third, fourth, and fifth jurors were brought into the courtroom and                                                                                                                                                                                                                                                         

 asked if any extra-judicial information had been presented to the jury, all three of them                                                                                                                                                                                                                                                                                                   

 denied that this had                                                                             happened.    But the sixth juror corroborated the second juror's                                                                                                                                                                                                                  

 assertion that there                                                                       had  been discussion of outside information.                                                                                                                                                                     Specifically, the sixth                                                          

juror told the court:                                                                         


                                                                                               Sixth Juror                                            :    We were instructed not to visit the sites                                                                                                                               

                                                                 [or]   anything   else.     And   we   went   in   and   sat   down   [to  

                                                                deliberate], and the first thing [the foreman] said was, "Let's                                                                                                                                                                                           

                                                                take a vote;                                            I already know where I am.                                                                                                               I went to the site;                                                

                                                                I visited it.                                      There's no fog line."                                                                                    

                                                                                               And then he went on to give us all of his reasons why,                                                                                                                                                                          

                                                                you know, [he did not] believe that the State presented a good                                                                                                                                                                                              

                                                                case.   ...   And we tried to go back to the evidence, and each                                                                                                                                                                                                  

                                                                time [he stated that] the trooper was dishonest:                                                                                                                                                                                  "We can't   

                                                                believe what the trooper said.                                                                                                                He didn't tell the truth about                                                                                

                                                                the fog line."                                                 ...   And he was adamant from the beginning                                                                                                                                

                                                                that he would not change his mind, because he went to the                                                                                                                                                                                                               

                                                                site and visited [it].                                                                     

                                                                                                                                                                                                 -  8 -                                                                                                                                                                                          2485

----------------------- Page 9-----------------------

                                                                          After the sixth juror made these statements, the defense attorney questioned                                                                                                                                                                                                                                                                             

the juror and suggested that the foreman might not have conducted a special investigation                                                                                                                                                                                                                                                                                                                               

-  that the foreman might simply have traveled down this section of the highway as part                                                                                                                                                                                                                                                                                                                                                                                

 of his daily routine.                                                                                       But the juror told the defense attorney that this was not the case:                                                                                                                                                                                                                                                                                                        


                                                                                                               Sixth Juror                                                   : No, [the foreman] went out of his way [to                                                                                                                                                                            

                                                                          make   these   observations],   because   he   lives   in   a   different  

                                                                          direction.       And    he    made    a    point    that    he    went    there  

                                                                           specifically to see about this case, and [to] show ... basically                                                                                                                                                                                                                         

                                                                          that the trooper was wrong.                                                                                                                               

                                                                          This sixth juror assured the court that all of the jurors were "getting along                                                                                                                                                                                                                                                                                                        

 fine" - "nobody's violent, [and we're] all very amicable".                                                                                                                                                                                                                                                                           The problem, according to                                                                                                                  

this juror, was the foreman's attempt "to bring outside evidence into [the case]."                                                                                                                                                                                                                                                                                                                                                                            

                                                                          After completing this                                                                                                   voir dire                                                examination of the six jurors,                                                                                                                                              the judge   

 again asked the attorneys how they stood on the question of a mistrial.                                                                                                                                                                                                                                                                                                                                

                                                                          The prosecutor took no position.                                                                                                                                                       He told the judge that, as far as he was                                                                                                                                                              

 concerned, the decision was up to Allen's                                                                                                                                                                                                      attorney:    if the defense did not request a                                                                                                                                                                                       

mistrial, then the jurors should be instructed to continue their deliberations.                                                                                                                                                                                                                                                                                                                                          And Allen's   

 attorney, for his part, declared that he would not agree to a mistrial.                                                                                                                                                                                                                                                                                                               

                                                                          Despite the parties' positions on this matter, the judge declared a mistrial                                                                                                                                                                                                                                                                                       

because the judge concluded that "there [was] no probability that a unanimous verdict                                                                                                                                                                                                                                                                                                                                                                

 [could] be reached."                                                                                               

                                                                           (The   judge   expressly declined to make a finding as to whether the jury                                                                                                                                                                                                                                                                                                                

 foreman had actually engaged in independent investigation of the case, or whether any                                                                                                                                                                                                                                                                                                                                                                                 

 extraneous   information   had   actually   been   discussed   during the                                                                                                                                                                                                                                                                                             jury's   deliberations.   

                                                                                                                                                                                                                                   -  9 -                                                                                                                                                                                                                            2485

----------------------- Page 10-----------------------

 Rather, she simply cited the inconsistency between the jurors' accounts as one additional                                                                                                                                                                                                                                                                                                                                                                              

 reason to conclude that the jurors were not going to reach a unanimous verdict.)                                                                                                                                                                                                                                                                                                                                                                                                             

                                                                                 A few minutes later, the judge summoned the jurors to the courtroom and                                                                                                                                                                                                                                                                                                                                                    

  informed them that the trial was over.                                                                                                                                                                                            

                                           Why we conclude that there was a manifest necessity for the mistrial                                                                                                                                                                                                                                                                                                                                                         

                                                                                 Allen's trial judge was presented with substantial reason to believe that the                                                                                                                                                                                                                                                                                                                                                 

jury foreman engaged in a private investigation of the facts, and then communicated the                                                                                                                                                                                                                                                                                                                                                                                                                        

 results of his investigation to the other jurors.                                                                                                                                                                                                                                     This allegation, if true, meant that the                                                                                                                                                                              

  integrity of the jury's deliberations had been compromised, and the trial judge would be                                                                                                                                                                                                                                                                                                                                                                                                                         

 required to take curative action.                                                                                                                                                                Thus, the judge's                                                                                                        individual examination of the six                                                                                                                                                    

jurors was both proper and necessary.                                                                                                                                                                                                 

                                                                                 (We note that the type of inquiry that the judge conducted here would be                                                                                                                                                                                                                                                                                                                                                          

  allowed even                                                                 after  the jury returned its verdict - because, under Alaska Evidence Rule                                                                                                                                                                                                                                                                                                                                             

  606(b), a jury's verdict may be impeached                                                                                                                                                                                                                             by   juror testimony "on the question [of]                                                                                                                                                                                       

 whether   extraneous   prejudicial   information   was   improperly   brought   to   the   jury's  

  attention".    In Allen's case, Evidence Rule 606(b) did not even apply - because the                                                                                                                                                                                                                                                                                                                                                                                                                      

  inquiry   concerning   the   jury's   potential   exposure   to   extraneous   information   was  

  conducted  during  the jury's deliberations,                                                                                                                                                                                                      before  a verdict was reached, to make sure that                                                                                                                                                                                                        

 the jury's deliberations remained lawful.                                                                                                                                                                                                       As this Court explained in                                                                                                                                   Larson v. State                                                                               , 79   

 P.3d 650, 653 (Alaska App. 2003), "Evidence Rule 606(b) ... does not restrict the use of                                                                                                                                                                                                                                                                                                                                                                                                                           

  [juror] evidence when the court investigates potential juror misconduct before the jury                                                                                                                                                                                                                                                                                                                                                                                                                

 renders its decision.")                                        

                                                                                 The results of the judge's inquiry (                                                                                                                                                              i.e., the judge's individual examinations                                                                                                                        

  of the six jurors) demonstrated the manifest necessity for a mistrial.                                                                                                                                                                                                                                                                                                                                           By the end of the                                                                         

                                                                                                                                                                                                                                                 -   10 -                                                                                                                                                                                                                                              2485

----------------------- Page 11-----------------------

judge's   inquiry,   it   was   clear   that   the   answers   given   by   four   of   the   jurors   were  

 irreconcilable with the answers given by the other two jurors.                                                                                                                                                                                                                     Somebody was lying to                                                                            

 the court.                                   

                                                            The jurors would not necessarily have been aware of this, because the six                                                                                                                                                                                                                                              

 of them were questioned individually, outside each other's presence.                                                                                                                                                                                                                                       But the judge had                                                 

 to make a decision about whether to continue the trial, given these conflicting answers                                                                                                                                                                                                                                                                  

 and given the unresolved possibility that extra-judicial information had been injected into                                                                                                                                                                                                                                                                                  

 the jury's deliberations.                                                                                 

                                                            If the trial was to continue, the trial judge would have to conduct a more                                                                                                                                                                                                                           

 probing inquiry to ascertain the truth or falsity of the allegation of misconduct.                                                                                                                                                                                                                                                                                    And  

 when the judge conducted this additional inquiry, the jurors would inevitably become                                                                                                                                                                                                                                                                      

 aware that the two groups of jurors were implicitly accusing each other of lying to the                                                                                                                                                                                                                                                                                        


                                                            Once the jurors became aware of this, no reasonable judge would expect                                                                                                                                                                                                                                

 the jury to be capable of rendering a proper verdict.                                                                                                                                                                                 For this reason, we conclude that                                                                                                    

 it was manifestly necessary to declare a mistrial.                                                                                                                                                                    



                                                            Under the facts of this case, we hold that the district court's declaration of  


 a mistrial was justified by a manifest necessity.   The State is therefore authorized to  


 bring Allen to trial again.  

                                                                                                                                                                                                                                                                                                            4  - that they must  



                                                            However, we wish to caution trial judges - once more 

 be  extremely  hesitant   to   declare  a  mistrial  without  the  express  consent  of  the  



                              See,  e.g.,  Cook v. State                                                                      , 36 P.3d 710, 729 (AlaskaApp.2001);                                                                                                                          Riney v. State                                            , 935 P.2d            

  828, 838 (Alaska App. 1997);                                                                                                Cross v. State                                               , 813 P.2d 691, 694 (Alaska App. 1991).                                                                                                                                   

                                                                                                                                                                                   -   11 -                                                                                                                                                                                2485

----------------------- Page 12-----------------------

defense.    Because of the constitutional protection against double jeopardy,                                                                                                                                                                                                                                                                                                                                                                            a wrong   

decision will mean that the State will be barred from retrying the defendant, regardless                                                                                                                                                                                                                                                                                                                                                         

of the strength of the State's evidence.                                                                                                                                                                                            

                                                                            This   caution is particularly applicable in situations like the present case,                                                                                                                                                                                                                                                                                                                  

where the defense attorney urged the court not to declare a mistrial, and the prosecutor                                                                                                                                                                                                                                                                                                                                                     

took the position that the court should adhere to the defense attorney's wishes.                                                                                                                                                                                                                                                                                                                                                                      We have   

affirmed the trial judge's decision only because of the unusual circumstances of Allen's                                                                                                                                                                                                                                                                                                                                                                           


                                                                                                                                                                                                                                     -   12 -                                                                                                                                                                                                                                    2485

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