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STATE OF CONNECTICUT v. ANTONIO J. INGLIS
(AC 35750)
DiPentima, C. J., and Gruendel and Alvord, Js.
Argued March 20—officially released July 1, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Clifford, J.)
Conrad Ost Seifert, assigned counsel, for the appel-
lant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Peter A. McShane, state’s
attorney, and Timothy J. Liston, former state’s attor-
ney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Antonio J. Inglis,
appeals from the judgment of conviction, rendered after
a jury trial, of two counts of murder in violation of
General Statutes § 53a-54a (a),1 and one count each of
capital felony in violation of General Statutes § 53a-54b
(7),2 assault in the first degree in violation of General
Statutes § 53a-59 (a) (5),3 and carrying a pistol without
a permit in violation of General Statutes § 29-35 (a).4 The
defendant claims that the court improperly declined
(1) to instruct the jury in accordance with two of his
proposed eyewitness identification instructions, and (2)
to provide a third party culpability instruction to the
jury.5 We affirm the judgment of the trial court.
The jury reasonably could have found that, in the
early hours of February 10, 2008, an altercation ensued
at the Cocktails on the Green nightclub (club) in Crom-
well that left two men dead and another wounded. The
altercation began when the defendant repeatedly antag-
onized one of the victims, Tyrese Lockhart, a patron
seated at the bar with friends. Lockhart and his friends
eventually confronted the defendant and asked him to
leave Lockhart alone. A group of the defendant’s friends
that included his brother, Daren Walls, likewise encour-
aged the defendant to leave Lockhart alone. When Israel
Dandrade, a disc jockey who was performing at the
club that evening, announced ‘‘last call’’ soon thereafter,
Lockhart headed toward an exit with friends. At that
moment, the defendant brandished a chrome revolver
and fired several shots in Lockhart’s direction. One shot
struck Lockhart in the head, another struck Dandrade
in the eye, and a third grazed the cheek of Kenneth
Lewis, a cook at the club. Lockhart and Dandrade died
as a result of their respective gunshot wounds.
The defendant subsequently was arrested and
charged with the aforementioned offenses. A jury trial
followed, at which the state presented eyewitness testi-
mony from multiple individuals identifying the defen-
dant as the shooter.6 The theory advanced by the
defense was that, due to the facial similarity between
Walls and the defendant, those witnesses could not
distinguish between the two brothers to properly iden-
tify the shooter.7 At the conclusion of trial, the jury
found the defendant guilty on all counts. The court
rendered judgment in accordance with that verdict and
sentenced the defendant to a total effective term of life
imprisonment without the possibility of release, plus
twenty five years.8 From that judgment, the defendant
now appeals.
I
The defendant alleges instructional error on the issue
of eyewitness identification. Specifically, he claims that
the court improperly declined to instruct the jury in
accordance with two of his proposed instructions
regarding ‘‘identification based on own recollection’’
and ‘‘honest mistake.’’9
Practice Book § 42-18, which specifies the form and
content requirements of requests to charge, provides
in relevant part that ‘‘[w]hen there are several requests,
they shall be in separate and numbered paragraphs,
each containing a single proposition of law clearly and
concisely stated with the citation of authority upon
which it is based, and the evidence to which the propo-
sition would apply. . . . ’’ (Emphasis added.) As our
Supreme Court repeatedly has explained, ‘‘[w]hile this
court does not favor unyielding adherence to rules of
procedure where the interests of justice are thereby
disserved . . . the ever increasing refinement of our
law justifies cooperation of counsel in stating requests
for jury instruction. The minor burden of cooperation
imposed by [Practice Book § 42-18] is neither unreason-
able nor novel.’’ (Internal quotation marks omitted.)
State v. Corbin, 260 Conn. 730, 747, 799 A.2d 1056
(2002).
It is undisputed that the defendant did not comply
with the prerequisites of Practice Book § 42-18. His
request to charge on eyewitness identification did not
cite to any legal authority, nor did it specify any evi-
dence to which the propositions allegedly applied. Sig-
nificantly, this is not a case in which the record contains
‘‘substantial additional support . . . such as detailed
colloquies with the court and opposing counsel and a
postcharge exception [indicating that] . . . the trial
court is informed adequately of the factual and legal
bases for the instructional request.’’ State v. Smith, 262
Conn. 453, 466, 815 A.2d 1216 (2003). Rather, the record
before us is bereft of any discussion of this specific
issue; the defendant did not raise it during the charging
conference or take a postcharge exception. The court,
therefore, properly could have denied those requests
to charge on the basis of the defendant’s noncompliance
with § 42-18. See State v. Bettini, 11 Conn. App. 684,
690, 528 A.2d 1180 (‘‘[i]n the absence of compliance
with the rules of practice, the trial court is entitled to
deny a request to charge’’), cert. denied, 205 Conn. 804,
531 A.2d 937 (1987); accord State v. Tomasko, 238 Conn.
253, 262–63, 681 A.2d 922 (1996) (trial court properly
denied request to charge that did not comply with rules
of practice).
The defendant also argues that his claim is reviewable
pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989). He is mistaken. As this court has
observed, ‘‘[n]ot every claim of instructional error is
constitutional in nature. State v. LaBrec, 270 Conn. 548,
557, 854 A.2d 1 (2004). Our Supreme Court repeatedly
has noted that it has recognized instructional claims as
raising constitutional issues only in matters relating to
the elements of an offense, burden of proof and the
presumption of innocence. Id.; see also State v. Schi-
appa, 248 Conn. 132, 165, 728 A.2d 466, cert. denied,
528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999);
State v. Dash, 242 Conn. 143, 151–52, 698 A.2d 297
(1997); State v. Walton, 227 Conn. 32, 64–65, 630 A.2d
990 (1993). The defendant’s claim does not pertain to
the elements of the offenses in question, the state’s
burden of proof or the presumption of innocence, nor
does the defendant make such an argument. Accord-
ingly, it does not merit Golding review.’’ State v. Antwon
W., 118 Conn. App. 180, 201, 982 A.2d 1112 (2009), cert.
denied, 295 Conn. 922, 991 A.2d 568 (2010). That logic
applies equally in the present case.
Claims pertaining to the adequacy of a court’s instruc-
tions on misidentification are not constitutional in
nature. See State v. Cerilli, 222 Conn. 556, 567, 610 A.2d
1130 (1992) (identification instruction not constitution-
ally required); State v. Tillman, 220 Conn. 487, 501, 600
A.2d 738 (1991) (‘‘[e]ven if the court’s instructions were
less informative on the risks of misidentification than
they might have been, the issue is at most one of instruc-
tional error rather than of constitutional error’’), cert.
denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876
(1992); State v. Anderson, 20 Conn. App. 271, 281, 566
A.2d 436 (1989) (‘‘there is no constitutional right to an
instruction on the fallibility of eyewitness identifica-
tions’’), cert. denied, 213 Conn. 813, 569 A.2d 549 (1990).
As such, the defendant cannot satisfy the second prong
of Golding.
II
The defendant also claims that the court committed
reversible error when it declined to provide a third
party culpability instruction to the jury. We disagree.
The following additional facts, which the jury reason-
ably could have found, are relevant to this claim. Walls
was the defendant’s brother and bore a strong facial
resemblance to him. He did not physically resemble the
defendant. Unlike the defendant, who stood five feet,
seven inches tall with a ‘‘husky’’ and ‘‘more muscular’’
build, Walls was five feet, ten inches tall and had a
‘‘slim’’ physique. At the time of the shooting, Walls’ hair
was braided in cornrows, whereas the defendant’s hair
was short and curly.10 The two also were dressed differ-
ently at that time. The defendant wore a black knit cap,
a baggy grey jacket with yellow trim, jeans, and tan
boots. By contrast, Walls had on a fitted and light-
colored jacket with a large emblem on the upper left
chest, jeans, and no cap.
Lockhart was seated at the bar when the defendant
began antagonizing him. After several minutes, Lock-
hart turned around and said, ‘‘I don’t even know who
you are, who are you, leave me alone . . . what is the
problem?’’ As Lockhart turned back to the bar to finish
his drink, Walls intervened and attempted to calm the
defendant. Walls told the defendant to ‘‘let it go’’ and
made a ‘‘calm down’’ gesture with his hands. The defen-
dant nevertheless refused to ‘‘let it go’’ and remained
agitated. Walls continued his efforts to calm the defen-
dant, telling him to ‘‘chill, just let it go, back up . . . .’’11
Lockhart was fatally shot soon thereafter.
At trial, the defendant submitted a request to charge
that sought, inter alia, an instruction on third party
liability.12 During the charging conference, defense
counsel explained why he thought that instruction was
appropriate, stating: ‘‘There’s a lot of controversy as
to—with respect to where the shooter was and who
was shooting. . . . Certainly, based on the testimony
that’s brought out [Walls] as being—looking similar to
[the defendant with] one witness saying he looks
exactly alike, we believe it’s more than appropriate for
the court to give such an instruction . . . .’’ The court
responded: ‘‘The only reason I disagree with that [is]
your classic third party culpability is usually the defense
. . . after some kind of evidentiary hearing or motion,
is attempting to put in evidence of third party culpability
that someone else had the motive and opportunity and
there has to be corroboration, et cetera, that someone
else may have committed the crime. It’s usually some-
body totally independent. Many times it happens in
those cases that are real ‘whodunit’ type of a case. A
situation here which, to me, is fairly typical . . . there’s
an issue where there is a shooting and there may be
more than one group involved and there may be an
issue [as] to who, in fact, pulled a trigger. And I don’t
see that as classic third party culpability because, in
this case, and I do feel it’s appropriate, I’m giving a
more extensive charge on identification of the person
who actually caused the death of the two individuals
here. And I think that type of charge, basically, covers
it. . . . I don’t think factually, there’s much of a ques-
tion that two people died as a result of gunshot wounds,
but the main issue for [the jury] is who, in fact, did
that? So, I think that covers it adequately. I really don’t
see it as a classic third party culpability [situation], and
I think the instructions are adequate.’’
The charge ultimately provided to the jury contained
detailed instructions on eyewitness identification,
which the defendant concedes comport with the model
instructions provided on the Judicial Branch website.
In addition, the court specifically instructed the jury
that ‘‘you must be satisfied beyond a reasonable doubt
of the accuracy of the identification of the defendant
before you may find him guilty on any charge. In short,
you must consider the totality of the circumstances
effecting the identification. Remember, the state has
the burden to not only prove every element of the crime,
but also the identity of the defendant as the perpetrator
of the crime. You must be satisfied beyond a reasonable
doubt of the identity of the defendant as the one who
committed the crime or you must find the defendant
not guilty.’’
Our Supreme Court outlined the standards applicable
to claims concerning jury instructions on third party
culpability in State v. Arroyo, 284 Conn. 597, 607–610,
935 A.2d 975 (2007). It stated in relevant part: ‘‘[A]
defendant has a right to introduce evidence that indi-
cates that someone other than the defendant committed
the crime with which the defendant has been charged.
. . . The defendant must, however, present evidence
that directly connects a third party to the crime. . . .
It is not enough to show that another had the motive
to commit the crime . . . nor is it enough to raise a
bare suspicion that some other person may have com-
mitted the crime of which the defendant is accused.’’
(Internal quotation marks omitted.) Id., 609. ‘‘Because
the standards governing the admissibility of third party
culpability evidence require that the trial court deter-
mine that such evidence be relevant to the jury’s deter-
mination of whether a reasonable doubt exists as to
the defendant’s guilt, we conclude that those same stan-
dards should govern whether a trial court should give
an appropriate instruction on third party culpability.
Put another way, if the evidence pointing to a third
party’s culpability, taken together and considered in
the light most favorable to the defendant, establishes
a direct connection between the third party and the
charged offense, rather than merely raising a bare suspi-
cion that another could have committed the crime, a
trial court has a duty to submit an appropriate charge
to the jury.’’13 Id., 610. A trial court’s determination as
to whether the evidence in a given case establishes
a direct connection between the third party and the
criminal offense is subject to the abuse of discretion
standard of review. State v. Jackson, 304 Conn. 383,
424, 40 A.3d 290 (2012).
The defendant maintains that his request for a third
party culpability instruction was appropriate in light of
the evidence that (1) ‘‘Walls and the defendant look
alike, Walls was present when the shooting occurred,
and Walls had a motive to shoot Lockhart, namely, that
he was in a group that got in a confrontation with
Lockhart and his group’’; and (2) at least one witness
testified that the shooter’s hair was braided in corn-
rows.14 For the following reasons, that claim is
untenable.
A
As discussed in part I of this opinion, Practice Book
§ 42-18 obligated the defendant to apprise the court of
the evidentiary basis of the proposed charge. His writ-
ten request to charge failed to do so, as it contained no
reference to any evidence whatsoever. At the charging
conference, defense counsel offered the following evi-
dentiary basis for his proposed third party culpability
instruction: ‘‘Certainly, based on the testimony that’s
brought out [Walls] as being—looking similar to the
[defendant with] one witness saying he looks exactly
alike, we believe it more than appropriate for the court
to give such an instruction . . . .’’ The mere fact that
Walls bore a facial resemblance to the defendant and
was present at the club does not establish ‘‘a direct
connection between the third party and the charged
offense, rather than merely raising a bare suspicion that
another could have committed the crime, [such that] a
trial court has a duty to submit an appropriate charge
to the jury’’; State v. Arroyo, supra, 284 Conn. 610;
particularly when the jury heard ample testimony that
Walls attempted to calm the defendant and to diffuse
the situation immediately prior to the shooting. Accord-
ingly, we cannot say that the court improperly declined
to instruct the jury on the proposed charge when the
evidentiary basis proffered by the defendant plainly did
not meet that standard.
B
To the extent that the defendant’s claim on appeal
is predicated on witness testimony allegedly identifying
the shooter as one with cornrows; see footnote 14 of
this opinion; he cannot prevail. That distinct claim was
never presented to the trial court as a basis for the
request to charge. As a result, the court did not have
an opportunity to rule on this matter. ‘‘[I]t is well estab-
lished that [o]ur rules of procedure do not allow a
[party] to pursue one course of action at trial and later,
on appeal, argue that a path [the party] rejected should
now be open to him. . . . To rule otherwise would
permit trial by ambuscade.’’ (Internal quotation marks
omitted.) State v. Fourtin, 307 Conn. 186, 208, 52 A.3d
674, 688 (2012); see also Practice Book § 60-5 (appellate
courts ‘‘shall not be bound to consider a claim unless
it was distinctly raised at the trial’’). For that reason,
‘‘[o]nly in [the] most exceptional circumstances can
and will this court consider a claim, constitutional or
otherwise, that has not been raised and decided in the
trial court.’’ (Internal quotation marks omitted.) State
v. Canales, 281 Conn. 572, 579, 916 A.2d 767 (2007).
Furthermore, Golding review of this unpreserved
claim is unwarranted, as it ‘‘does not pertain to the
elements of the offenses in question, the state’s burden
of proof or the presumption of innocence . . . .’’ State
v. Antwon W., supra, 118 Conn. App. 201. The defendant
nevertheless relies on State v. Small, 242 Conn. 93, 104,
700 A.2d 617 (1997), which held that ‘‘a defendant who
has produced evidence supporting a legally recognized
defense is entitled, as a matter of law, to a theory of
defense instruction, and that the denial of such an
instruction is a violation of due process.’’ (Emphasis
added.) A fortiori, to establish a claim of constitutional
magnitude under Small, the requested charge must
implicate a legally recognized defense. See State v.
Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979) (‘‘only
when evidence indicating the availability of [a] legally
recognized [defense] is placed before a jury is a defen-
dant entitled as a matter of law to a theory of defense
instruction’’ [emphasis omitted]). Examples of legally
recognized defenses include entrapment; State v.
Golodner, 305 Conn. 330, 351, 46 A.3d 71 (2012); self
defense; State v. Havican, 213 Conn. 593, 603, 569 A.2d
1089 (1990); State v. Fletcher, 10 Conn. App. 697, 707,
525 A.2d 535 (1987), aff’d, 207 Conn. 191, 540 A.2d 370
(1988); duress; State v. Fuller, 199 Conn. 273, 277, 506
A.2d 556 (1986); and affirmative defenses. State v.
Small, supra, 242 Conn. 102. It is well established that
‘‘[a] claim of innocence or a denial of participation in
the crime charged is not a legally recognized defense
and does not entitle a defendant to a theory of defense
charge.’’ State v. Rosado, supra, 707; accord State v.
Golodner, supra, 352. A claim of third party culpability
is a denial of participation in the crime and, hence, not
a legally recognized defense. The defendant therefore
is not entitled to Golding review of that unpreserved
claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-54a provides in relevant part: ‘‘(a) A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person or a third person . . . .’’
2
General Statutes § 53a-54b provides in relevant part: ‘‘A person is guilty
of a capital felony who is convicted of any of the following . . . (7) murder
of two or more persons at the same time or in the course of a single
transaction . . . .’’
3
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when . . . (5) with intent to cause
physical injury to another person, he causes such injury to such person or
to a third person by means of the discharge of a firearm.’’
4
General Statutes § 29-35 (a) provides in relevant part: ‘‘No person shall
carry any pistol or revolver upon his or her person, except when such person
is within the dwelling house or place of business of such person, without
a permit to carry the same issued as provided in section 29-28. . . .’’
5
The defendant also invites this court to exercise its supervisory authority
over the administration of justice to require more detailed eyewitness identi-
fication jury instructions. We decline that invitation.
6
Brothers Maurice Overton and Andre Overton were at the club at all
relevant times. Maurice Overton testified at trial that he saw the defendant
holding a gun at the time of the shooting. Andre Overton similarly testified
that when the gunshots rang out, he turned and saw the defendant holding
a chrome gun in his hand. Andre Overton was approximately five feet behind
the defendant at that time. Qualnisha Lowe also identified the defendant as
the shooter at trial. She testified that, at the time of the shooting, she was
two feet from the defendant and ‘‘looked right in his face.’’ Nestor Diaz
testified that at the time of the shooting, he was approximately five feet
from the person holding the gun and was ‘‘confident’’ in his identification
of the defendant as the shooter.
Dana Middleton was socializing with Lockhart at the club and witnessed
the defendant antagonizing Lockhart prior to the shooting. He testified that
the defendant was approximately ten feet away and ‘‘kept dancing around
and pointing his fingers and grabbing his meat and making gestures like he
was making . . . threats, basically.’’ The defendant then approached Lock-
hart and Middleton and stated that ‘‘[t]hese motherfuckers don’t want it
with us. They don’t want no problems.’’ Middleton responded, ‘‘Yeah, you’re
right. Don’t nobody really want no problems.’’ As tensions rose, the defendant
was ‘‘[a]cting like a monkey; basically, like a monkey that wants to fight
somebody or have problems. . . . [A]cting like he’s ready to do something.
He’s ready to fight. He’s amped up. He can’t stand still.’’ The defendant
continued to gesture at Lockhart. Moments later as Middleton and Lockhart
were leaving the bar, Middleton heard gunshots and then saw Lockhart on
the ground with a hole in his head and brain matter on the floor. Middleton
then saw the defendant approximately five feet away holding a gun that
was pointed in his direction.
7
In his closing argument, defense counsel stated in relevant part that
‘‘[t]his is a misidentification case . . . . And you know it is the defense’s
assertion that [Walls] is the shooter in this case.’’
8
Specifically, the court sentenced the defendant to a term of life imprison-
ment without the possibility of release on the capital murder charge, with
which it merged the two murder counts. The court then sentenced the
defendant to a twenty year term of incarceration on the assault count and
a five year term of incarceration on the carrying a pistol without a permit
count, both of which the court ordered to run consecutively to the other sen-
tences.
9
In his principal appellate brief, the defendant acknowledges that ‘‘[t]he
court’s instructions comport with the model instructions published on the
state of Connecticut’s Judicial [Branch] website . . . .’’
10
Cornrows is ‘‘a hairstyle in which the hair is divided into sections and
braided close to the scalp in rows.’’ State v. Elliston, 86 Conn. App. 479,
481 n.2, 861 A.2d 563 (2004), cert. denied, 273 Conn. 906, 868 A.2d 746 (2005).
11
Diaz testified at trial that ‘‘[r]ight before the shot went off . . . someone
was talking to [the defendant] trying to calm him down, or it seemed like
they were trying to, you know, talk some sense into him or something like
that.’’ Yakeima Blake testified that it was a taller ‘‘guy with the braids’’ who
attempted to calm the individual antagonizing Lockhart by the bar. Middleton
likewise testified that, as the defendant antagonized Lockhart, ‘‘there was
a person right next to him. . . . He looked like a taller version of [the
defendant].’’
12
The requested charge stated: ‘‘You have heard evidence in this case
from several eyewitnesses that someone other than [the defendant] commit-
ted these crimes. This type of evidence is known as third party guilt. As I
already made clear to you, the state has the burden of proving the defendant’s
guilt beyond a reasonable doubt. It must prove all the elements of the crime,
including that it was the defendant, and not some other person, who was
the perpetrator. This burden rests on the state at all times; the defendant
has no burden of proof whatsoever, on this or any other issue. The question
presented by third party culpability evidence is not whether the guilt of
another person has been proven, but whether, after a full consideration of
all the evidence in this case, there is a reasonable doubt that [the defendant]
was the perpetrator. Evidence that a third party may have committed this
crime may, if credited, tend to raise a reasonable doubt as to whether the
state has met its required burden to prove the identity of the defendant as
the perpetrator. If, after considering all of the evidence, you have a reason-
able doubt as to the defendant’s guilt, you must find the defendant not
guilty. See generally State v. Echols, [203 Conn. 385, 524 A.2d 1143] (1987).’’
13
In his principal appellate brief, the defendant asks us to revisit that
authority, arguing that ‘‘imposing the ‘direct connection’ requirement is
overly restrictive.’’ We decline to do so. As an intermediate appellate tribunal,
this court is not free to depart from or modify the precedent of our Supreme
Court. See Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters
at Lloyd’s & Cos. Collective, 121 Conn. App. 31, 48–49, 994 A.2d 262, cert.
denied, 297 Conn. 918, 996 A.2d 277 (2010).
14
At trial, Detective Denise LaMontagne of the Cromwell Police Depart-
ment acknowledged that, as part of her investigation into the shooting, she
had a description from ‘‘at least one, maybe two witnesses, that the shooter
had cornrows.’’ Also, during his cross-examination, the following colloquy
transpired between Diaz and defense counsel:
‘‘[Defense Counsel]: Your statement also says that the shooter had corn-
rows coming down the back of his head. Correct?
‘‘[Diaz]: Yes, that it might—that it might be, yeah. Curly hair; might have
been cornrows.
‘‘[Defense Counsel]: Is your testimony that your statement says he might
have had cornrows or that he did?
‘‘[Diaz]: If I can read the statement, I’ll clarify it.
‘‘[Defense Counsel]: Certainly. You said either maybe or he did—was
wearing cornrows hanging out of his hat, though. Correct?
‘‘[Diaz]: From what I can remember, yeah.’’