IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-21-2
Filed: 19 April 2016
Wake County, No. 11CRS214547
STATE OF NORTH CAROLINA
v.
RODNEY NIGEE PLEDGER TAYLOR, Defendant.
Appeal by defendant from judgment entered on or about 23 January 2013 by
Judge Carl R. Fox in Superior Court, Wake County. Originally heard in the Court of
Appeals on 4 June 2014, with opinion filed 5 August 2014. An order reversing in part
the decision of the Court of Appeals and remanding for consideration of “defendant’s
Fifth Amendment argument on the merits” was filed by the Supreme Court of North
Carolina on 6 November 2015.
Attorney General Roy A. Cooper III, by Assistant Attorney General Kathleen N.
Bolton, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Constance
E. Widenhouse, for defendant-appellant.
STROUD, Judge.
Rodney Nigee Pledger Taylor (“defendant”) appeals from a judgment entered
on a jury verdict finding him guilty of first-degree murder. Among defendant’s
arguments on appeal, defendant argued that the trial court erred in denying his
motion to suppress because he invoked his Fifth Amendment right to counsel during
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a custodial interrogation. In our previous opinion, filed on 5 August 2014, we declined
to address defendant’s Fifth Amendment argument on the merits and held that the
trial court committed no error. See State v. Taylor, ___ N.C. App. ___, 763 S.E.2d 928
(2014) (unpublished). But on 6 November 2015, on discretionary review, the North
Carolina Supreme Court reversed in part this Court’s decision and remanded the case
to this Court for consideration of “defendant’s Fifth Amendment argument on the
merits.” State v. Taylor, 368 N.C. 419, 777 S.E.2d 759 (2015). Accordingly, we
address defendant’s Fifth Amendment argument on the merits. We find no error.
I. Background
We review our discussion of the factual and procedural background from our
previous opinion:
Defendant was indicted for first degree murder on
12 June 2011. He pled not guilty and proceeded to jury
trial. Before trial, defendant filed a motion to suppress
statements he made to police. He argued that he had been
unconstitutionally seized and that he was subjected to
custodial interrogation without the benefit of Miranda
warnings. The trial court denied defendant’s motion by
order entered 17 January 2013.
At trial, the State’s evidence tended to show that on
the evening of 23 June 2011, defendant (also known as
“Sponge Bob”), Alex Walton (also known as “Biz” or “Mr.
Business”), and Floyd Creecy (also known as “Bruno” or
“Big Bs”) got together to hang out and smoke marijuana.
All three men were involved in a local gang named “Bounty
Hunters,” which was affiliated with the larger “Crips”
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gang.[1] The three men went to a store on Poole Road in
east Raleigh to buy some cigars to make “blunts.” They all
rode together in the black Chrysler Pacifica owned by Mr.
Creecy’s wife.
After buying what they needed from the store, the
three men got back into Mr. Creecy’s car and drove back
down Poole Road. Mr. Creecy was driving, defendant was
in the passenger seat, and Mr. Walton was sitting in the
back. As they were riding down Poole Road, defendant
said, “There’s Polo,” and told Mr. Creecy to pull over. There
were three individuals walking down the sidewalk—
Darius Johnson (also known as “Polo”), Damal [O’Neal],
and Kyonatai Cleveland. Mr. Creecy pulled into a church
parking lot behind them. Defendant exited the car and
approached the three; Mr. Walton then got out and
followed defendant.
As defendant and Mr. Walton approached, Mr.
Johnson took out what he had in his pockets, including his
cell phone, and gave it to Ms. Cleveland. He also took out
a wine opener that he had in his pocket, opened a small
knife at the end of the opener, then closed the knife and put
the opener back in his pocket. Defendant said to Mr.
Johnson, “Why didn’t you get back to us?” Mr. Johnson
responded, “I don’t know.” Defendant then said, “Well, I
gave you more than enough time.” At that point, defendant
said to Mr. Walton, “Watch out, Biz,” pulled out a black
revolver and began shooting at Mr. Johnson.
During this encounter, Ms. Cleveland called 911.
However, she was unable to tell the operator what was
happening because when they saw the gun, Mr. Johnson
and his two friends tried to run. Mr. Johnson was hit by
one bullet in his front left abdomen. The forensic evidence
suggested that the bullet was fired from a close distance—
perhaps less than two feet. After shooting Mr. Johnson,
defendant and Mr. Walton ran back to the black Pacifica,
which Mr. Creecy had pulled around to the next street. The
gun was still in defendant’s hand when he got back into Mr.
1 This Court added a footnote here that “Mr. Creecy denied being in a gang, but Mr. Walton
testified that Mr. Creecy was [a] ‘mentor’ to the two younger men in the ‘Bounty Hunters.’ ” Taylor,
___ N.C. App. ___, 763 S.E.2d 928, slip op. at 2 n.1.
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Creecy’s car.
At trial, Mr. [O’Neal], Ms. Cleveland, Mr. Walton,
and Mr. Creecy all testified to the events of that night. The
three men all positively identified defendant as the
shooter. Mr. Walton and Mr. Creecy testified that
defendant and Mr. Johnson had an argument
approximately a week before the shooting. Mr. Johnson
had been asking defendant about joining the Bounty
Hunters. Defendant told Mr. Johnson to call him. When
Mr. Johnson failed to call him, defendant said that he was
going to “bang,” i.e. shoot, Mr. Johnson.
Defendant was asked to come to the police station to
be interviewed by detectives. He initially denied knowing
anything about the shooting, but later admitted that he
was in the SUV. He said that the shooter was someone
named “Chuck.” He later conceded that there was no one
named Chuck but continued to deny that he was the
shooter. Defendant claimed that after the shooting, he
brought the gun back to his house. The detectives went to
defendant’s grandmother’s house, where he was living.
When they arrived, defendant’s grandmother informed
them that she had found a gun in her grandson’s room,
under his bed. She explained that she did not want the gun
in her house, so she took it outside and hid it in her
backyard. The police recovered the gun—a black .38
caliber revolver. Four spent shell casings were found in the
revolver. Once the gun was recovered and the interview
was complete, defendant was placed under arrest. Upon
being transported to the jail, two deputies searched
defendant’s pockets and found two .38 caliber bullets.
The jury found defendant guilty of first degree
murder. The trial court accordingly sentenced defendant
to life in prison without the possibility of parole. Defendant
gave notice of appeal in open court.
Taylor, ___ N.C. App. ___, 763 S.E.2d 928, slip op. at 1-5 (footnote omitted).
II. Discussion
Defendant argues that the trial court erred in denying his motion to suppress
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because he invoked his Fifth Amendment right to counsel during a custodial
interrogation.
A. Standard of Review
The standard of review in evaluating the denial of a
motion to suppress is whether competent evidence
supports the trial court’s findings of fact and whether the
findings of fact support the conclusions of law. However,
when . . . the trial court’s findings of fact are not challenged
on appeal, they are deemed to be supported by competent
evidence and are binding on appeal. Conclusions of law are
reviewed de novo and are subject to full review. Under a
de novo review, the court considers the matter anew and
freely substitutes its own judgment for that of the lower
tribunal.
State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citations and
quotation marks omitted).
B. Analysis
In Edwards v. Arizona, the U.S. Supreme Court held that “it is inconsistent
with Miranda and its progeny for the authorities, at their instance, to reinterrogate
an accused in custody if he has clearly asserted his right to counsel.” Edwards v.
Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 387 (1981) (discussing Miranda v.
Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966)). In Edwards, the police interrogated
the petitioner on the evening of January 19 but ceased their questioning when the
petitioner invoked his right to counsel. Id. at 486-87, 68 L. Ed. 2d at 387. The
following day, the police returned and advised the petitioner of his Miranda rights
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but did not provide access to counsel. Id. at 487, 68 L. Ed. 2d at 387-88. The
petitioner “stated that he would talk, but what prompted this action does not appear.”
Id., 68 L. Ed. 2d at 388. During this interrogation, the petitioner made a self-
incriminating statement. Id., 68 L. Ed. 2d at 388. The U.S. Supreme Court held that
the petitioner’s “statement, made without having had access to counsel, did not
amount to a valid waiver and hence was inadmissible.” Id., 68 L. Ed. 2d at 388.
In Davis v. United States, the U.S. Supreme Court reiterated its holding in
Edwards that “law enforcement officers must immediately cease questioning a
suspect who has clearly asserted his right to have counsel present during custodial
interrogation” and addressed the question of “how law enforcement officers should
respond when a suspect makes a reference to counsel that is insufficiently clear to
invoke the Edwards prohibition on further questioning.” Davis v. United States, 512
U.S. 452, 454, 129 L. Ed. 2d 362, 368 (1994).
The applicability of the rigid prophylactic rule of
Edwards requires courts to determine whether the accused
actually invoked his right to counsel. To avoid difficulties
of proof and to provide guidance to officers conducting
interrogations, this is an objective inquiry. Invocation of
the Miranda right to counsel requires, at a minimum, some
statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney. But
if a suspect makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in light
of the circumstances would have understood only that the
suspect might be invoking the right to counsel, our
precedents do not require the cessation of questioning.
Rather, the suspect must unambiguously request
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counsel. As we have observed, a statement either is such
an assertion of the right to counsel or it is not. Although a
suspect need not speak with the discrimination of an
Oxford don, . . . he must articulate his desire to have
counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the
statement to be a request for an attorney. If the statement
fails to meet the requisite level of clarity, Edwards does not
require that the officers stop questioning the suspect.
We decline petitioner’s invitation to extend Edwards
and require law enforcement officers to cease questioning
immediately upon the making of an ambiguous or
equivocal reference to an attorney. . . . [I]f a suspect is
indecisive in his request for counsel, the officers need not
always cease questioning.
....
Of course, when a suspect makes an ambiguous or
equivocal statement it will often be good police practice for
the interviewing officers to clarify whether or not he
actually wants an attorney. . . . But we decline to adopt a
rule requiring officers to ask clarifying questions. If the
suspect’s statement is not an unambiguous or unequivocal
request for counsel, the officers have no obligation to stop
questioning him.
Id. at 458-62, 129 L. Ed. 2d at 371-73 (citations and quotation marks omitted). “The
test is an objective one that assesses whether a reasonable officer under the
circumstances would have understood the statement to be a request for an attorney.”
State v. Hyatt, 355 N.C. 642, 655, 566 S.E.2d 61, 70 (2002), cert. denied, 537 U.S.
1133, 154 L. Ed. 2d 823 (2003). In Davis, the U.S Supreme Court held that the
petitioner’s remark—“Maybe I should talk to a lawyer”—was not a request for counsel
and thus the Naval Investigative Service agents were not required to cease
questioning the petitioner. Id. at 462, 129 L. Ed. 2d at 373.
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The U.S. Supreme Court had previously explained the difference between
invocation and waiver and held that courts must not examine a defendant’s
statements made after his invocation of the right to counsel in determining whether
his invocation was ambiguous:
First, courts must determine whether the accused actually
invoked his right to counsel. Second, if the accused invoked
his right to counsel, courts may admit his responses to
further questioning only on finding that he (a) initiated
further discussions with the police, and (b) knowingly and
intelligently waived the right he had invoked.
....
Where nothing about the request for counsel or the
circumstances leading up to the request would render it
ambiguous, all questioning must cease. In these
circumstances, an accused’s subsequent statements are
relevant only to the question whether the accused waived
the right he had invoked. Invocation and waiver are
entirely distinct inquires, and the two must not be blurred
by merging them together.
The importance of keeping the two inquiries distinct
is manifest. Edwards set forth a “bright-line rule” that all
questioning must cease after an accused requests counsel.
In the absence of such a bright-line prohibition, the
authorities through badgering or overreaching—explicit or
subtle, deliberate or unintentional—might otherwise wear
down the accused and persuade him to incriminate himself
notwithstanding his earlier request for counsel’s
assistance. With respect to the waiver inquiry, we
accordingly have emphasized that a valid waiver cannot be
established by showing that the accused responded to
further police-initiated custodial interrogation. Using an
accused’s subsequent responses to cast doubt on the
adequacy of the initial request itself is even more
intolerable. No authority, and no logic, permits the
interrogator to proceed on his own terms and as if the
defendant had requested nothing, in the hope that the
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defendant might be induced to say something casting
retrospective doubt on his initial statement that he wished
to speak through an attorney or not at all.
....
[A]n accused’s postrequest responses to further
interrogation may not be used to cast retrospective doubt
on the clarity of the initial request itself. Such subsequent
statements are relevant only to the distinct question of
waiver.
Smith v. Illinois, 469 U.S. 91, 95-100, 83 L. Ed. 2d 488, 493-96 (1984) (per curiam)
(citations, quotation marks, brackets, footnote, and ellipsis omitted).
In evaluating whether a defendant’s request for counsel is unambiguous, the
Seventh Circuit Court of Appeals has held that the questions—“Can I have a
lawyer?”—and—“I mean, but can I call [a lawyer] now?”—and—“Can you call my
attorney?”—were unambiguous requests for an attorney. U.S. v. Lee, 413 F.3d 622,
626 (7th Cir. 2005); U.S. v. Wysinger, 683 F.3d 784, 795-96 (7th Cir. 2012); U.S. v.
Hunter, 708 F.3d 938, 943-44 (7th Cir. 2013). In Hunter, the Court explained that
[i]nstead of using a word like “should” or “might,” which
would suggest that the defendants were still undecided
about whether they wanted a lawyer, all three defendants
used the word “can.” The defendants’ choice of the word
“can,” by definition, means that they were inquiring into
their present ability to be “able to” obtain a lawyer or to
“have the opportunity or possibility to” obtain a lawyer. In
sum, given the text of the previous statements that our
circuit has found sufficient to invoke the right to counsel,
the text of [the defendant’s] request was sufficient to have
put a reasonable officer on notice that [the defendant] was
invoking his right to counsel.
Hunter, 708 F.3d at 943-44 (citation omitted). Similarly, in Sessoms v. Grounds, the
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Ninth Circuit Court of Appeals held that the question—“There wouldn’t be any
possible way that I could have a—a lawyer present while we do this?”—was an
unambiguous request for an attorney. Sessoms v. Grounds, 776 F.3d 615, 626 (9th
Cir. 2015), cert. denied, ___ U.S. ___, 193 L. Ed. 2d 207 (2015). In contrast, the Eighth
Circuit Court of Appeals held that a state court was not unreasonable in determining
that the question—“Could I call my lawyer?”—was not an unambiguous request for
counsel. Dormire v. Wilkinson, 249 F.3d 801, 805 (8th Cir. 2001), cert. denied, 534
U.S. 962, 151 L. Ed. 2d 281 (2001).
In Hyatt, our Supreme Court held that the defendant’s statement “to the effect
that his father wanted him to have a lawyer present during the interrogation was
insufficient to constitute an invocation of [the] defendant’s Fifth Amendment right to
counsel[,]” because the “statement did not unambiguously convey [the] defendant’s
desire to receive the assistance of counsel.” Hyatt, 355 N.C. at 656-57, 566 S.E.2d at
71. The Court also noted that the detective “made no attempt to dissuade [the]
defendant from exercising his Fifth Amendment right” but “clarified that [the]
defendant, and not his father, must be the one to decide whether to seek the
assistance of counsel.” Id. at 657, 566 S.E.2d at 71.
Here, during the police interview, after defendant asked to speak to his
grandmother, Detective Morse called defendant’s grandmother from his phone and
then handed his phone to defendant. While on the phone, defendant told his
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grandmother that he called her to “let [her] know that [he] was alright.” From
defendant’s responses on the phone, it appears that his grandmother asked him if the
police had informed him of his right to speak to an attorney. Defendant responded,
“An attorney? No, not yet. They didn’t give me a chance yet.” Defendant then
responds, “Alright,” as if he is listening to his grandmother’s advice. Defendant then
looked up at Detective Morse and asked, “Can I speak to an attorney?” Detective
Morse responded: “You can call one, absolutely.” Defendant then relayed Detective
Morse’s answer to his grandmother: “Yeah, they said I could call one.” Defendant
then told his grandmother that the police had not yet made any charges against him,
listened to his grandmother for several more seconds, and then hung up the phone.
Detective Morse then filled out a Miranda waiver form and advised defendant
of his Miranda rights. Defendant refused to sign the form and explained that his
grandmother told him not to sign anything. Detective Morse than responded: “Okay.
Are you willing to talk to me today?” Defendant responded: “I will. But [my
grandmother] said—um—that I need an attorney or a lawyer present.” Detective
Morse responded: “Okay. Well you’re nineteen. You’re an adult. Um—that’s really
your decision whether or not you want to talk to me and kind-of clear your name or—
” Defendant then interrupted: “But I didn’t do anything, so I’m willing to talk to
you.” Defendant then orally waived his Miranda rights.
Because defendant asked Detective Morse the question—“Can I speak to an
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attorney?”—during his telephone conversation with his grandmother after she raised
the issue of his right to counsel, it is ambiguous whether defendant was conveying
his own desire to receive the assistance of counsel or whether he was merely relaying
a question from his grandmother to Detective Morse. In the case of the latter,
defendant’s question would not constitute an invocation, because a defendant’s
statement that a family member would like for him to have the assistance of counsel
does not “unambiguously convey [the] defendant’s desire to receive the assistance of
counsel.” See Hyatt, 355 N.C. at 656-57, 566 S.E.2d at 71. Under Davis, defendant’s
ambiguous remark did not require Detective Morse to cease questioning. Davis, 512
U.S. at 461-62, 129 L. Ed. 2d at 373 (“If the suspect’s statement is not an
unambiguous or unequivocal request for counsel, the officers have no obligation to
stop questioning him.”). Defendant’s later statement—“But [my grandmother] said—
um—that I need an attorney or a lawyer present.”—is also not an invocation since it
does not “unambiguously convey defendant’s desire to receive the assistance of
counsel.” See Hyatt, 355 N.C. at 656-57, 566 S.E.2d at 71.
A few minutes later, after Detective Morse advised defendant of his Miranda
rights, he properly clarified that the decision to invoke the right to counsel was
defendant’s decision, not his grandmother’s. See Davis, 512 U.S. at 461, 129 L. Ed.
2d at 373 (“Of course, when a suspect makes an ambiguous or equivocal statement it
will often be good police practice for the interviewing officers to clarify whether or not
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he actually wants an attorney.”); Hyatt, 355 N.C. at 657, 566 S.E.2d at 71 (noting
with approval that the detective “clarified that [the] defendant, and not his father,
must be the one to decide whether to seek the assistance of counsel”).
Defendant’s reliance on U.S. v. Lee and U.S. v. Hunter is misplaced, because
the defendants in those cases did not make their requests within the context of a
simultaneous conversation with a third-party. Lee, 413 F.3d at 624; Hunter, 708 F.3d
at 940. Had defendant asked the question—“Can I speak to an attorney?”—before or
after his phone conversation, Lee and Hunter would become much more factually
similar. But defendant asked this question during the phone conversation with his
grandmother after she raised the issue of his right to counsel. The context of
defendant’s request creates ambiguity concerning whether he was conveying his own
desire to receive the assistance of counsel or whether he was merely relaying a
question from his grandmother to Detective Morse. We distinguish Wysinger and
Sessoms for the same reason. See Wysinger, 683 F.3d at 795-96; Sessoms, 776 F.3d
at 626. Following Davis and Hyatt, we hold that Detective Morse was not required
to cease questioning, because defendant did not unambiguously convey that he
desired to receive the assistance of counsel. See Davis, 512 U.S. at 461-62, 129 L. Ed.
2d at 373; Hyatt, 355 N.C. at 656-57, 566 S.E.2d at 71.
Because defendant orally waived his Miranda rights before he made the
statements at issue on appeal, we need not address the issue of whether defendant
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was in custody for purposes of Miranda. We therefore hold that the trial court did
not err in denying defendant’s motion to suppress.
C. Prejudice
Even assuming arguendo that the trial court erred in denying defendant’s
motion to suppress, we hold that the State has shown that this alleged constitutional
error would have been harmless beyond a reasonable doubt. See N.C. Gen. Stat. §
15A-1443(b) (2013). We preliminarily note that defendant admitted to killing Mr.
Johnson (“the victim”) during an inquiry pursuant to State v. Harbison, 315 N.C. 175,
337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986); thus, the
central issue at trial was whether defendant acted with premeditation and
deliberation. We also note that during the police interview, defendant never
confessed to shooting the victim; rather, he said Floyd Creecy shot the victim.
Defendant argues that his following statements and omission during the police
interview prejudiced him: (1) defendant’s admission that he left the car with a gun
before approaching the victim; (2) defendant’s admission that he put four bullets in
the gun; (3) defendant’s admission that he warned Biz Walton immediately before the
shooting; and (4) defendant’s failure to mention that the victim brandished a knife.
Defendant argues that these statements and this omission tended to support the
State’s theory at trial that defendant shot the victim with premeditation and
deliberation rather than defendant’s theory at trial that he did not act with
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premeditation and deliberation and shot the victim only because the victim
brandished a knife. Although defendant’s statements and omission do tend to
support a finding of premeditation and deliberation, any alleged error in their
admission would be harmless beyond a reasonable doubt given the overwhelming
evidence of defendant’s premeditation and deliberation.
All three eyewitnesses, Mr. O’Neal, Ms. Cleveland, and Mr. Walton, testified
that defendant confronted the victim, shot the victim, and fired multiple shots.2 See
State v. Taylor, 362 N.C. 514, 531, 669 S.E.2d 239, 256 (2008) (holding that a jury
may infer premeditation and deliberation from a defendant’s conduct, including
“entering the site of the murder with a weapon, which indicates the defendant
anticipated a confrontation and was prepared to use deadly force to resolve it” and
“firing multiple shots, because some amount of time, however brief, for thought and
deliberation must elapse between each pull of the trigger”) (citation and quotation
marks omitted), cert. denied, 558 U.S. 851, 175 L. Ed. 2d 84 (2009). All three
witnesses also testified that the victim never threatened defendant with a knife. Biz
Walton testified that defendant continued to shoot at the victim while the victim was
running away. The State also proffered a recording of the 911 call in which defendant
says, “Watch out, Biz,” followed by four gunshots. Dr. Jonathan Privette opined that
the victim was shot from less than two feet away. Mr. Walton also testified that
2 Mr. Creecy testified that he heard multiple gunshots but did not see the shooting.
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defendant had previously told him that he was going to “bang” the victim. In light of
this overwhelming evidence of defendant’s premeditation and deliberation, we hold
that the State has shown that any alleged constitutional error in denying defendant’s
motion to suppress would have been harmless beyond a reasonable doubt. See N.C.
Gen. Stat. § 15A-1443(b).
III. Conclusion
For the foregoing reasons, we hold that the trial court committed no error.
NO ERROR.
Judges STEPHENS and McCULLOUGH concur.
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