IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
June 7, 1999
TOMMY L. KING, )
Cecil Crowson, Jr.
)
Appellate Court Clerk
Appellant, ) Maury Criminal
)
Vs. ) No. 01-S-01-9707-CC-00146
)
STATE OF TENNESSEE, )
)
Appellee. )
CONCURRING/DISSENTING OPINION
I agree with the majority that the jury’s reliance on the felony murder aggravating
circumstance in this case violated article I, § 16 of the Tennessee Constitution and that
a harmless error analysis must be applied under our decision in State v. Howell, 868
S.W.2d 238 (Tenn. 1993). I disagree, however, with both the majority’s application of
the Howell analysis and its conclusion.
In State v. Howell, this Court said that a constitutional harmless error analysis as
applied to a capital sentencing proceeding requires the appellate court “to completely
examine the record for the presence of factors which potentially influence[d] the
sentence ultimately imposed,” including the sum, strength, qualitative nature, substance
and persuasiveness of any remaining aggravating circumstances. Id. at 261-62. In my
view, the majority fails to properly apply this thorough analysis. Moreover, resentencing
is necessary because the State has failed to prove beyond a reasonable doubt that the
sentence would have been the same had the jury given no consideration to the
unconstitutional aggravating circumstance. I therefore dissent.
CONSTITUTIONAL HARMLESS ERROR ANALYSIS
To understand Howell’s rationale and underpinnings, it is helpful to review the
history of constitutional harmless error analysis in the United States Supreme Court. In
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the
Supreme Court declined to adopt a rule requiring reversal for all constitutional errors
which occur in a trial. The Court observed that “there may be some constitutional errors
which in the setting of a particular case are so unimportant and insignificant that they
may, consistent with the Federal Constitution, be deemed harmless . . . .” Id. at 22, 87
S. Ct. at 827.
The Court recognized that “harmless-error rules can work very unfair and
mischievous results when, for example, highly important and persuasive evidence, or
argument, though legally forbidden, finds its way into a trial in which the question of guilt
or innocence is a close one.” Id. The Court therefore held that before a constitutional
error could be deemed harmless, the beneficiary of the error, i.e., the prosecution, must
prove “beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” Id. at 24, 87 S. Ct. at 828 (citing Fahy v. Connecticut, 375 U.S. 85,
84 S. Ct. 229, 11 L. Ed. 2d 171 (1963)).
The Supreme Court first applied Chapman to a capital sentencing proceeding in
Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988) (holding
that the admission of expert testimony about the defendant’s risk for future
dangerousness violated Sixth Amendment). In holding that the error was not harmless
under Chapman, the Court emphasized that the question is “not whether the legally
admitted evidence was sufficient to support the death sentence . . . but rather, whether
the State has proved ‘beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” Id. at 258-59, 108 S. Ct. at 1798 (quoting
Chapman, 386 U.S at 24, 87 S. Ct. at 828).
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Two years later in another capital sentencing case, Clemons v. Mississippi, 494
U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990), the United States Supreme Court
remanded to the Mississippi Supreme Court, holding that when a capital sentencing jury
in a weighing state has relied in part on an unconstitutional aggravating circumstance,
an appellate court may either reweigh the remaining aggravating circumstances, if that
is otherwise permissible under state law, or apply the Chapman harmless error
analysis. In performing either analysis at the appellate level, however, the Court
stressed that the defendant must be afforded “an individualized and reliable sentencing
determination based on the defendant’s circumstances, his background, and the crime”
as required by the Eighth Amendment to the United States Constitution. Id. at 749, 110
S. Ct. at 1449.
In Stringer v. Black, 503 U.S. 222, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992),
the Supreme Court again stressed the need for “close appellate scrutiny of the import
and effect of invalid aggravating factors to implement the well-established Eighth
Amendment requirement of individualized sentencing determinations in death penalty
cases.” Id. at 230, 112 S. Ct. 1136 (emphasis added). Moreover, with regard to states
such as Tennessee which employ a weighing process in the capital sentencing
determination, the Court observed:
[W]hen the sentencing body is told to weigh an invalid factor in its
decision, a reviewing court may not assume it would have made no
difference if the thumb had been removed from death’s side of the scale.
When the weighing process itself has been skewed, only constitutional
harmless-error analysis or reweighing at the trial or appellate level suffices
to guarantee that the defendant received an individualized sentence. This
clear principle emerges not from any single case . . . but from our long line
of authority setting forth the dual constitutional criteria of precise and
individualized sentencing.
Id. at 232, 112 S. Ct. at 1137 (emphasis added).
Finally, in Sochor v. Florida, 504 U.S. 527, 112 S. Ct. 2114, 119 L. Ed. 2d 326
(1992), a majority of the Supreme Court vacated a death sentence due to the Florida
Supreme Court’s failure to conduct a sufficient harmless error analysis under Chapman.
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In particular, the Court observed that the Florida court did not “explain or even ‘declare’”
that the trial court’s consideration of an invalid aggravating circumstance “‘was harmless
beyond a reasonable doubt’” in that it “‘did not contribute to the [sentence] obtained.’”
Id. at 540, 112 S. Ct. at 2123 (quoting Chapman, 386 U.S. at 24, 87 S. Ct. at 828). In a
separate concurring opinion, Justice O’Connor summarized the principles in this area:
In Chapman v. California, . . . we held that before a federal constitutional
error can be held harmless, the reviewing court must find “beyond a
reasonable doubt that the error complained of did not contribute to the
verdict obtained.” This is justifiably a high standard, and while it can be
met without uttering the magic words “harmless error,” the reverse is not
true. An appellate court’s bald assertion that an error of constitutional
dimensions was “harmless” cannot substitute for a principled explanation
of how the court reached that conclusion. In Clemons v. Mississippi,. . .
for example, we did not hesitate to remand a case for “a detailed
explanation based on the record” when the lower court failed to undertake
an explicit analysis supporting its “cryptic,” one-sentence conclusion of
harmless error.
Id. at 541, 112 S. Ct. at 2123 (O’Connor, J., concurring) (emphasis added) (citations
omitted).
HOWELL ANALYSIS
The principles evident in these Supreme Court cases -- that a constitutional error
must be harmless beyond a reasonable doubt and that appellate review must preserve
the constitutional requirement of individualized sentencing -- were of primary concern in
our opinion in State v. Howell. We therefore held that when a jury has returned a death
sentence based partially on the invalid felony murder aggravating circumstance, the
verdict may be upheld only if a reviewing court concludes beyond a reasonable doubt
that the sentence would have been the same had the jury given no weight to the invalid
factor. See id. at 260; see also Stringer, 503 U.S. at 230-31, 112 S. Ct. at 1136-37.
In order to guarantee the precision that individualized sentencing considerations
demand in capital cases and to provide a principled explanation for our review in each
case, we established the following framework for appellate review:
[I]t is important, when conducting harmless error review, to completely
examine the record for the presence of factors which potentially influence
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the sentence ultimately imposed. These include, but are not limited to,
the number and strength of remaining valid aggravating circumstances,
the prosecutor’s argument at sentencing, the evidence admitted to
establish the invalid aggravator, and the nature, quality and strength of
mitigating evidence.
Id. at 260-61 (emphasis added).
As discussed above, the first factor in Howell requires consideration of any valid
aggravating circumstances found by the jury. We stressed that “even more crucial than
the sum of the remaining aggravating circumstances is the qualitative nature of each
circumstance, its substance and persuasiveness, as well as the quantum of proof
supporting it.” Id. at 261. Accordingly, Howell expressly requires in-depth and critical
analysis of all remaining aggravating circumstances.
The proper analysis is set out in Howell and later cases. In Howell, we found
that the Middlebrooks error was harmless beyond a reasonable doubt in part because
evidence supporting the remaining aggravating circumstance of prior violent felony
convictions was “undisputed and overwhelming.” Id. at 262. Although we observed
that this aggravating circumstance is more “qualitatively persuasive and objectively
reliable” than other aggravating circumstances, id. at 261, we still analyzed the
substance and persuasiveness of the evidence that supported the (i)(2) aggravating
circumstance as it applied to defendant Howell. We said:
In addition to the cold-blooded execution-style murder . . . in Memphis,
Tennessee, the defendant committed another similar cold-blooded
execution-style murder in Oklahoma within twenty-four hours . . . . Less
than thirty days later, he committed an armed robbery in Florida and later
engaged in a shootout with police officers before his capture, for which he
was convicted of attempted murder. A few years earlier, he had been
convicted in Wyoming for armed robbery.
Id. at 262.
Similarly, in State v. Nichols, 877 S.W.2d 722 (Tenn. 1994), the Middlebrooks
error was found to be harmless beyond a reasonable doubt in part because the valid
remaining aggravating circumstance, prior violent felonies, was supported by five prior
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convictions for aggravated rape. In performing the harmless error analysis as required
by Howell, we reviewed each of the five prior convictions in detail and considered the
substance and persuasiveness of the evidence:
the defendant had committed five similar aggravated rapes within 90 days
of [the victim’s] murder, and in three instances was armed with weapons
including a cord, a pistol, and a knife. The modus operandi of the
convictions was similar to the felony resulting in [the victim’s] murder. The
defendant, when “energized,” went out night after night, roaming the city,
selecting vulnerable victims, eventually breaking into their homes and
violently committing rape. The evidence supporting the remaining valid
aggravating circumstance is undisputed and overwhelming.”
Id. at 738 (emphasis added); see also Boyd v. State, 959 S.W.2d 557 (Tenn. 1998)
(finding Middlebrooks error harmless beyond a reasonable doubt in part due to
seriousness of the second degree murder used to establish the prior violent felony
aggravating circumstance).
Likewise, the substance and persuasiveness of the remaining valid aggravating
circumstances was scrutinized in cases where the Middlebrooks error required remand
for a resentencing. In Hartman v. State, 896 S.W.2d 94 (Tenn. 1995), this Court
stressed:
In Howell, we noted that a critical factor in our harmless-error
analysis was the qualitative nature of each aggravating circumstance that
remained after the invalid aggravator was removed from the sentencing
equation. This Court stated an intention to look to the substance of the
remaining circumstances and their persuasiveness, as well as to the
quantum of proof supporting them. The objective reliability of a remaining
aggravating circumstance is of particular importance in this evaluation.
Id. at 103 (emphasis added).
In State v. Walker, 910 S.W.2d 381 (Tenn. 1995), this Court conducted the
Howell harmless error analysis and observed that the defendant’s prior violent felony
conviction for voluntary manslaughter was “not nearly as positive” as the evidence
supporting the aggravating circumstance in Howell. Moreover, we indicated that the
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Howell analysis requires more than merely determining whether the evidence was
sufficient to support the remaining aggravating circumstance:
[Walker] was indicted for first degree murder and found guilty of voluntary
manslaughter. While this is, as instructed by the trial judge, conviction of
a violent felony we have no way of knowing and cannot speculate whether
the jury would have imposed the death penalty with one of the two
aggravating circumstances withdrawn from their consideration and with
the necessity of weighing the one remaining aggravating circumstance
against the mitigating circumstances.
Walker, 910 S.W.2d at 398 (emphasis added).
In contrast, the majority in this case declines to “reweigh” the evidence of
aggravating circumstances, stating only that it has “considered” the record and finds the
valid aggravating circumstances “objectively reliable” and “amply supported by the
proof.” The majority does not discuss the strength, qualitative nature, substance,
persuasiveness, or quantum of the proof supporting the valid aggravating
circumstances despite the express requirement in Howell. Thus, the majority fails to
properly apply Howell and also fails to preserve the requirement of individualized
sentencing. 1
Remaining Aggravating Circumstances
Prior Violent Felonies
We now apply the Howell harmless error analysis to the valid aggravating
circumstances which were considered by the jury along with the invalid felony murder
aggravating circumstance. To establish the first aggravating circumstance, that the
defendant had a prior conviction for a felony that involved violence or the threat of
violence, see Tenn. Code Ann. § 39-2-203(i)(2) (1982) (now codified at Tenn. Code
1
Mor eove r, the m ajorit y appe ars to cons ider o nly wh ethe r the e viden ce w as leg ally sufficient to
establish an aggravating circumstance and not the strength, substance, and persuasiveness of the proof
establish ing that circu msta nce.
-7-
Ann. § 39-13-204(i)(2) (1997 & Supp. 1998)), the State relied upon the defendant’s
prior convictions for kidnapping and attempt to commit a felony, to wit, robbery.2
In analyzing the strength, substance and persuasiveness of this aggravating
circumstance as required by Howell, we observe that it was described as “marginal” by
this Court on direct appeal. State v. King, 694 S.W.2d 941, 944 (Tenn. 1985). The fact
that King received only a suspended sentence and probation for the kidnapping of his
wife and nine months imprisonment for the attempted robbery necessarily is relevant to
the strength, seriousness and persuasiveness of those crimes. Moreover, the fact that
the crimes did not involve actual harm to a victim is also relevant.
As pointed out in the concurring opinion by Judge Wade in the Court of Criminal
Appeals and by way of illustration,3 the strength, substance, and persuasiveness of
King’s prior convictions are weaker than in any of our prior cases in which the error has
been deemed harmless. In Howell, the defendant had prior convictions for murder and
armed robbery. 868 S.W.2d at 262. In Boyd, the defendant had a prior conviction for
second degree murder. 959 S.W.2d at 561. In Nichols, the defendant had multiple
convictions for aggravated rape. 877 S.W.2d at 738. In State v. Smith, 893 S.W.2d
908, 926 (Tenn. 1994), the defendant had prior convictions for robbery, assault with
intent to murder, and aggravated rape. In State v. Cazes, 875 S.W.2d 253, 270 (Tenn.
1994), the defendant had prior convictions for assault with intent to murder and
aggravated rape. In contrast, where this factor was supported only by a conviction for
voluntary manslaughter, we concluded that resentencing was necessary. Walker, 910
S.W.2d at 398.
2
The version of (i)(2) in effect at the time of this case requires a finding that “[t]he defendant was
previously convicted of one or more felonies . . . which involve the use or threat of violence to the person.”
Tenn. Code Ann. § 39-2-203 (1982). In contrast, the present form of (i)(2) requires a finding that “[t]he
defend ant was previous ly convicted o f one (1) o r mor e felonies . . . whose statutory elem ents involve the
use of violence to the person.” Tenn. Co de Ann. § 39-13-204(i)(2)(1997 & S upp. 1998).
3
Although I agree w ith the m ajority asse rtion that How ell does n ot require a comparative review
of case s, I would a lso obse rve that How ell does not preclude such a comparison to other cases for the
purpose of illustration in undertaking a thorough review. Indeed, examining our precedent for the purpose
of measuring the effect of an error in a case being reviewed is a basic component of appellate review.
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Accordingly, in applying Howell, I would conclude that King’s prior convictions
marginally established this aggravating circumstance. The prior convictions, however,
lacked the strength, substance and persuasiveness of the egregious convictions
supporting this factor in other cases. In my view, all of these factors should be taken
into consideration in conducting the harmless error analysis under Howell.
Remaining Aggravating Circumstances
Great Risk of Death
We now apply the Howell harmless error analysis to the second remaining valid
aggravating circumstance found by the jury. It was that the defendant “knowingly
created a great risk of death to two (2) or more persons, other than the victim
murdered, during his act of murder.” Tenn. Code Ann. § 39-2-203(i)(3) (1982) (now
codified at Tenn. Code Ann. § 39-13-204(i)(3) (1997 & Supp. 1998)).
This Court has previously held that this aggravating circumstance “contemplates
either multiple murders or threats to several persons at or shortly prior to or shortly after
an act of murder upon which the prosecution is based.” State v. Cone, 665 S.W.2d 87,
95 (Tenn.), cert. denied, 467 U.S. 1210, 104 S. Ct. 2400, 81 L. Ed. 2d 357 (1984). We
have most commonly upheld its application in cases where the defendant fires multiple
gunshots in the course of a robbery or other incident at which several persons other
than the murder victim are present. E.g., State v. McKay, 680 S.W.2d 447 (Tenn.
1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1412, 84 L. Ed. 2d 795 (1985)
(defendants killed two victims during robbery and shot at and threatened two other
persons inside store); State v. Workman, 667 S.W.2d 44 (Tenn.), cert. denied, 469 U.S.
873, 105 S. Ct. 226, 83 L. Ed. 2d 155 (1984) (defendant engaged in shoot-out with
police, killing one officer, wounding a second, and missing a third); State v. Johnson,
632 S.W.2d 542 (Tenn.), cert. denied, 459 U.S. 882, 103 S. Ct. 183, 74 L. Ed. 2d 148
(1982) (three people shot and injured in store and two people shot and killed in the
parking lot as defendant fled). On the other hand, this Court has held that this factor
was not applicable where the defendant shot and threatened three persons while
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fleeing from a robbery but did not kill the two victims until the following day. Cone, 665
S.W.2d at 95.
Courts in other states have analyzed similar aggravating factors by considering a
multitude of circumstances: the manner of the killing, the type of weapon used by the
defendant, the number of gunshots fired, the size of the scene in which the killing
occurred, and the proximity of other individuals. See, e.g., State v. Rose, 398 S.E.2d
314 (N.C. 1990); Commonwealth v. Moser, 549 A.2d 76 (Pa. 1988).
Other courts have restricted the application of this aggravating factor, holding
that “great risk” of death means “highly probable” and not merely possible. See, e.g.,
State v. Smith, 707 P.2d 289 (Ariz. 1985); Kampff v. State, 371 So.2d 1007 (Fla. 1979).
I agree with the majority that King’s actions were legally sufficient to support this
aggravating factor. I disagree, however, with the majority’s view that Howell requires
only a determination of whether the factor is supported by “objectively reliable” proof.
Instead, in reviewing the strength, substance and persuasiveness of the aggravator, I
note that this case substantially differs from the multiple gunshots and random shoot-
outs that marked such cases as Johnson, Workman, and McKay. Moreover, although
several individuals were present, there was no random exchange of gunfire and only
the victim was shot at and killed. I believe, therefore, that all of these circumstances
must be taken into consideration in applying the constitutional harmless error analysis.
Prosecutor’s Argument at Sentencing
We next turn to the third Howell factor in the harmless error analysis -- whether
and the extent to which the prosecution relied on the invalid felony murder factor in
arguing for the death penalty in the sentencing phase of the trial. The State’s argument
is replete with references to the felony murder factor, as well as to the fact that the
killing occurred during a robbery. A review of the prosecutor’s opening argument
reveals the following statements:
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[W]hen you carefully analyze as you have done, and find
that on May 27th, 1982, without justification of any sort,
without claim of any right, this man willfully, deliberately took
the life another with malice with a deadly weapon and took
that in the course of committing another felony, to wit:
Armed robbery.
...
The day is gone when we can just pick out a county and go
there and pick out a man and pick out a business, rob and
kill, and then with impunity seek to escape the accountability
of our deeds.
...
And the murder was committed while the Defendant was
engaged in committing, or was an accomplice in the
commission of, or was attempting to commit, or was fleeing
after committing , or attempting to commit any first degree
murder, arson, rape, robbery, burglary, larceny, kidnapping,
aircraft piracy, or unlawful throwing, placing, or discharging
of a destructive device or bomb. He committed this murder
in the course of an armed robbery.
...
Hold this man accountable, stop his reign of criminal activity,
put him under the kind of sentence that will forbid him to
once again roam the streets seeking criminal activity, that
will forbid him from once again choosing to come on a tour
of Maury County to kill and to murder.
The following additional references to the felony murder aggravating factor appear in
the prosecution’s final closing remarks:
[The defendant] comes to Maury County for no good reason
other than he says he has some stolen goods in his car that
he wants to sell, and goes into a place of business in Maury
County to a man that he says he doesn’t even know, and
with the purpose, with his big pistol, with the purpose to rob
and the, the pre-conceived notion that he will kill if he has to,
and rob and kill the decent citizens of this community.
...
We have listed for your consideration no less than three
mitigating [sic] circumstances. One of which you have
already determined, and that is that this murder was
committed during the course of an armed robbery.
...
That has [been] determined in order to find that this man
was guilty of felony murder, so that has been found by you
already beyond a reasonable doubt.
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...
Violence, crimes of violence, risk of death to two or more
persons, and of course, the underlying felony in this felony
murder charge of which he now stands convicted which you
have already found beyond a reasonable doubt.
...
When a man takes a pistol, whether he takes a large pistol
such as this, or a little bitty pistol, when he takes an
instrument of death and goes into another person’s business
with the preconceived purpose of using that instrument of
death for whatever, or in whatever manner is necessary in
order to steal and rob from the people there, then I cannot
see any mitigating circumstances when he goes in there and
kills a man.
It is evident from the foregoing that the State’s reliance on the invalid felony
murder aggravating factor was substantial and strongly emphasized in seeking the
death penalty. Moreover, the jury was told on several occasions that, by virtue of its
guilty verdict, it had already found this circumstance to have been proven. Accordingly,
I disagree with the majority’s conclusion that taken as a whole, the State’s argument did
not emphasize the felony murder aggravating circumstance.
Mitigating Evidence
The fourth enumerated factor in Howell requires the reviewing court to look at the
nature, quality, and strength of mitigating evidence that was before the jury. Mitigating
evidence may include any aspect of the defendant’s background, record, character, and
any circumstances about the offense that may mitigate against the death penalty. State
v. Teague, 897 S.W.2d 248, 255 (Tenn. 1995); see also Lockett v. Ohio, 438 U.S. 586,
604, 98 S. Ct. 2954, 2964, 57 L. Ed. 2d 973 (1978).
The defendant’s mitigation evidence consisted of only his own testimony and
was not extensive or overwhelming. Nonetheless, King testified that he was 32 years
old at the time of sentencing; that he had two brothers and two sisters, and his parents
were deceased. He had been married and divorced, and had one son who was 3 years
old at the time of the sentencing hearing. King had worked selling insurance and as a
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cook for a restaurant in Chattanooga. After having surgery on his stomach, he worked
part-time for his brother as a brick-layer. King testified that he had never intentionally
harmed anyone.4
CONCLUSION
The majority has failed to properly apply the constitutional harmless error
analysis as required by Howell by failing to consider the strength, qualitative nature,
substance, and persuasiveness of the remaining valid aggravating circumstances and,
as a result of its failure, has reached a conclusion with which I cannot agree.
The constitutional error in the sentencing phase of a capital case may be
deemed harmless only if the reviewing court concludes “beyond a reasonable doubt
that the sentence would have been the same had the jury given no weight to the invalid
felony murder aggravating factor.” Howell, 868 S.W.2d at 262 (emphasis added). As
Justice O’Connor emphasized in Sochor v. Florida, “this is justifiably a high standard.”
504 U.S. at 541, 112 S. Ct. at 2123 (O’Connor, J., concurring).
Having thoroughly reviewed the relevant factors which potentially influenced the
sentence reached by the jury, I cannot conclude beyond a reasonable doubt that the
sentence would have been the same had the jury given no weight to the invalid
aggravating circumstance. I would, therefore, remand for resentencing free from the
constitutional defect that was present in this case. I am authorized to state that Justice
Birch concurs in this opinion.
___________________________________
RILEY ANDERSON, CHIEF JUSTICE
4
Cf. Hartman, 896 S.W.2d at 103 (Middlebrooks error required resentencing despite minimal
evidence of mitigating factors).
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