If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 14, 2024
Plaintiff-Appellee,
v No. 359985
Wayne Circuit Court
MARTEZ DENEAL FORD, LC No. 20-001422-01-FC
Defendant-Appellant.
Before: GARRETT, P.J., and RIORDAN and LETICA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of second-degree murder,
MCL 750.317, mutilation of a dead body, MCL 750.160, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b.1 The trial court sentenced defendant to
concurrent prison terms of 40 to 50 years’ imprisonment for the second-degree murder conviction
and 5 to 10 years’ imprisonment for the mutilation-of-a-body conviction, and a consecutive two-
year prison term for the felony-firearm conviction. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Defendant’s convictions arise from the shooting death of Donte Marsh, the victim, and the
subsequent burning of his body. A witness described seeing two assailants pull the victim2 from
the back seat of a vehicle in an apartment complex parking lot on April 2, 2019, at approximately
9:00 a.m. One of the two assailants held the victim, and the other assailant shot him multiple
times. The assailants then placed the victim in the back seat of the vehicle and drove off. A short
while later, the police responded to a vehicle fire less than two miles from the shooting scene. The
1
The jury acquitted defendant of the charge of first-degree premeditated murder,
MCL 750.316(1)(a), but found him guilty of the lesser offense of second-degree murder.
Defendant was also acquitted of an additional charge of felony-firearm.
2
This witness did not specifically identify the victim, but his identity was ascertained from the
collective evidence admitted at trial.
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victim’s deceased body was discovered inside the burning vehicle. The medical examiner
determined that the victim died from multiple gunshot wounds, and he was likely deceased before
the vehicle fire started.
Evidence was presented at trial that the victim sold drugs at the apartment complex where
the shooting occurred. Defendant was identified as the victim’s friend or associate. Surveillance
videos captured defendant and the victim together on the evening of April 1, 2019, in a vehicle
that matched the description of the vehicle seen at the shooting scene. From the footage, it was
learned that defendant wore a black baseball cap that matched the description of a hat found at the
shooting scene. Defendant was identified as a likely contributor to DNA found on that black cap.
A cell phone analyst determined that a cell phone linked to defendant was in the area at the time
of the victim’s shooting. After the shooting, the cell phone was tracked moving away from Detroit.
The phone was in Ohio later that afternoon, and two weeks later it was in Kentucky, where
defendant was ultimately arrested.
II. MOTION TO DISMISS
Defendant contends that the trial court erred by denying his motion to dismiss under the
Interstate Agreement on Detainers (“IAD”), MCL 780.601. We disagree.
The interpretation and application of the IAD presents a question of law reviewed de novo.
People v Duenaz, 306 Mich App 85, 107-108; 854 NW2d 531 (2014). We review a trial court’s
ruling on a motion to dismiss for an abuse of discretion. People v Witkoski, 341 Mich App 54, 59;
988 NW2d 790 (2022). “This Court will find an abuse of discretion if the trial court chose an
outcome that is outside the range of principled outcomes.” People v Schaw, 288 Mich App 231,
236; 791 NW2d 743 (2010). The appellate court reviews de novo a trial court’s rulings on
underlying questions regarding the interpretation of the IAD. People v Bylsma, 493 Mich 17, 26;
825 NW2d 543 (2012).
“The IAD creates uniform procedures for lodging and executing a detainer, i.e., a legal
order that requires a State in which an individual is currently imprisoned to hold that individual
when he has finished serving his sentence so that he may be tried by a different State for a different
crime.” People v Swafford, 483 Mich 1, 8; 762 NW2d 902 (2009) (quotation marks and citation
omitted). Michigan entered into the IAD to encourage the timely resolution of all outstanding
charges against prisoners. Id. To encourage the timely resolution of all charges pending, the IAD
imposes time limits on prosecutions as provided in MCL 780.601, Article III(a), which states, in
pertinent part:
Whenever a person has entered upon a term of imprisonment in a penal or
correctional institution of a party state, and whenever during the continuance of the
term of imprisonment there is pending in any other party state any untried
indictment, information or complaint on the basis of which a detainer has been
lodged against the prisoner, he shall be brought to trial within one hundred eighty
days after he shall have caused to be delivered to the prosecuting officer and the
appropriate court of the prosecuting officers’ jurisdiction written notice of the place
of his imprisonment and his request for a final disposition to be made of the
indictment, information or complaint: Provided that for good cause shown in open
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court, the prisoner or his counsel being present, the court having jurisdiction of the
matter may grant any necessary or reasonable continuance.
The trial court must dismiss any charges brought against a defendant under the IAD if there has
been a failure to strictly comply with the applicable time provision. See People v Stone, 269 Mich
App 240, 243; 712 NW2d 165 (2005). However, the statute also provides that the 180-day limit
may be tolled if the trial court finds upon good cause shown that a continuance is reasonable or
necessary. Id.
The parties did not appear to dispute that defendant signed the written notice and request
for final disposition on October 14, 2019, and that the prosecution received notice on October 28,
2019. Therefore, the statutory 180-day period would have ended on April 24, 2020. Defendant
broadly argues that docket congestion cannot constitute good cause for a continuance under the
IAD, citing MCR 6.004(C)(6). But, MCR 6.004(C) does not implement the IAD; instead, it applies
to the release on bond of defendants who are incarcerated for 180 days or more as a result of
pending felony charges. Although the rule also specifies various periods of delay that are to be
excluded for purposes of computing the 180-day period, MCR 6.004(C)(6) states that delay caused
by docket congestion should not be considered. MCR 6.004(C)(6) does not apply to the 180-day
period under MCL 780.601, Art III(a), which instead allows for a continuance on a showing of
good cause that a continuance is “reasonable or necessary,” language that does not appear in
MCR 6.004(C). Therefore, defendant’s reliance on MCR 6.004(C)(6) in support of his argument
that the trial court was not permitted to consider docket congestion is misplaced.
The trial court found that good cause for a continuance was demonstrated because of the
onset of the COVID-19 pandemic and resultant emergency orders, which were issued before the
180-day period would have expired on April 24, 2020. In March 2020, the Governor declared a
state of emergency because of the onset of the COVID-19 pandemic and the Supreme Court, in
response, issued Administrative Order No. 2020-1, effective immediately, and adopted emergency
procedures in the state’s court facilities. See 505 Mich xcix (2020). Effective March 18, 2020,
the Supreme Court imposed restrictions on trial court proceedings, limiting access to courtrooms
to no more than 10 people. Administrative Order No. 2020-2, 505 Mich cii (2020). Beginning
April 23, 2020, the Supreme Court delayed all jury trials until June 22, 2020, or until further order
of the Court. See Administrative Order No. 2020-10, 505 Mich cxxxix (2020). On May 20, 2020,
the Wayne Circuit Court issued an emergency order suspending bench trials until July 7, 2020,
and suspending jury trials until August 17, 2020. Defendant had an absolute right to a jury trial,
US Const, Am VI; MCR 6.401, and he never sought to waive that right. Thus, before the 180-day
period expired, and at the time defendant filed his motion to dismiss, the trial court could not
proceed to try defendant’s case. Under the circumstances, the trial court did not err by finding that
there was good cause that a continuance was reasonable or necessary.
This conclusion is supported by this Court’s decision in People v Witkoski, 341 Mich App
54, 57-58, 62-64; 988 NW2d 790 (2022), which considered the effect of delay related to the
COVID-19 pandemic on a defendant’s claim that dismissal was required under the statutory 180-
rule, MCL 780.131, which requires a prosecutor to act in good faith and proceed promptly to move
a defendant’s case to the point of readiness for trial within 180 days. This Court reversed a trial
court’s decision dismissing the case where “a significant amount of the delay in bringing
defendant’s case to trial was not the fault of the prosecutor, but rather resulted from our Supreme
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Court’s decision to suspend jury trials during the early days of the COVID-19 pandemic.” Id. at
56, 62-64.
Defendant does not dispute that the prosecutor lost the ability to bring his case to trial
before his 180-day period expired and did not regain that ability before he filed his motion to
dismiss on June 8, 2020. He argues, however, that the Michigan Supreme Court and the Wayne
Circuit Court did not have authority to suspend the IAD or trials. However, the Michigan Supreme
Court did not suspend the IAD. It only suspended trial proceedings, which the trial court found
constituted good cause demonstrating that a continuance was reasonable or necessary for purposes
of proceeding under the IAD. Moreover, we reject defendant’s argument that the Supreme Court
lacked the authority to suspend trials, given that “the Supreme Court has superintending control
over all state courts.” Carter v DTN Mgt Co, ___ Mich App ___, ___; ___ NW2d ___ (2023)
(Docket No. 360772); slip op at 6, lv granted 511 Mich 1025 (2023), citing Const 1963, art 6, § 4;
see also Lapeer Co Clerk v Lapeer Circuit Judges, 465 Mich 559, 569; 640 NW2d 567 (2002).
“Thus, the Supreme Court had authority to manage the operations of Michigan courts amidst a
global pandemic.” Carter, ___ Mich App at ___; slip op at 6. Therefore, the trial court did not
abuse its discretion by denying defendant’s motion to dismiss after finding that there was good
cause demonstrating that a continuance was reasonable or necessary.
III. MISTRIAL
Defendant contends that the trial court erred by failing to declare a mistrial after a witness
repeatedly made prejudicial comments and outbursts about being afraid in light of what she had
witnessed and her fear continuing even as she testified at trial. We disagree.
Because defendant never requested a mistrial in the trial court, this issue is unpreserved.
People v Nash, 244 Mich App 93, 96; 625 NW2d 87 (2000). Therefore, we review this issue for
plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 762-763; 597
NW2d 130 (1999); People v Miller, 326 Mich App 719, 732; 929 NW2d 821 (2019). An error is
plain if it is “clear or obvious,” and an error affects substantial rights if it “affected the outcome of
the lower court proceedings.” Carines, 460 Mich at 763. In addition,
an appellate court must exercise its discretion in deciding whether to reverse.
Reversal is warranted only when the plain, forfeited error resulted in the conviction
of an actually innocent defendant or when an error seriously affected the fairness,
integrity, or public reputation of judicial proceedings independent of the
defendant’s innocence. [Id. (quotation marks, citation, and brackets omitted).]
Defendant objects to several statements made by a witness who testified that she observed
two assailants attack the victim before shooting him multiple times. When the prosecutor asked
the witness what happened after the shooting, the witness stated: “I called 911. I was scared to
death. I’ve been scared ever since. I moved out of my apartment and everything.” When the
prosecutor then asked the witness if she called the police after she witnessed two men throwing
the victim into the backseat of a vehicle, the witness responded: “I called 911. Scared me to death.
I’m still scared. Can’t you tell when I’m talking?” After the witness listened to her 911 call, she
stated: “I’m so scared, see. Still am. That’s me.”
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The prosecutor asked the witness how seeing the shooting made her feel. The witness
stated: “I’m about to – I’m scared now. I’ve been scared ever since. I moved up out of my
apartment, like, a week. I moved out of my apartment and I was finna [sic] move – move away
from here because y’all ain[’]t got the other guy. There were three guys in that car.” Then, the
following exchange took place:
The Witness: Oh, man, I’m so scared. Y’all better get the other guy because
they gonna come and get me.
Ms. Ciaffone [The Prosecutor]: Okay, I’m gonna stop you. Just wait until
I ask you a question.
The Witness: Okay.
Ms. Ciaffone: Thank you, . . . . One minute.
The Court: They’ll get ‘em.
The Witness: Scared.
Later, the witness stated that, after the testimony, she would leave town. And, when the witness
was dismissed and about to leave the stand, the witness once again expressed being scared.
Defense counsel objected to the statement. The trial court stated that the jury surely would
disregard the remark apparently in light of the witness’s demeanor.3
“A motion for a mistrial should be granted only for an irregularity that is prejudicial to the
rights of the defendant and impairs the defendant’s ability to get a fair trial.” People v Beesley,
337 Mich App 50, 54; 972 NW2d 294 (2021) (quotation marks and citation omitted). In order “for
a due process violation to result in reversal of a criminal conviction, a defendant must prove
prejudice to his or her defense.” Id. (quotation marks and citation omitted). Moreover, the
“moving party must establish that the error complained of is so egregious that the prejudicial effect
can be removed in no other way.” Id. (quotation marks and citation omitted).
Except for one exchange, the witness’s comments, that she was scared when she witnessed
the shooting and continued to be scared, were not responsive to the prosecutor’s questions, but
were interjected along with her answers to otherwise proper questions. Generally, “[a]n
unresponsive, volunteered answer to a proper question is not grounds for the granting of a
mistrial.” People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995). The only time the
witness responded to a direct question was when the prosecutor asked her how she felt after she
3
The trial court commented that the witness is who she is. And, in the transcript, there is no
apparent indication that the witness engaged in “outbursts” as opposed to mere unresponsive
volunteered answers. No affidavit was presented to support the contention that prejudicial
outbursts occurred, and no such record was made. And, in its opinion and order denying
defendant’s motion for a new trial, the trial court concluded that the witness “did not make loud,
dramatic ‘outbursts’ in the courtroom.” Defendant does not challenge this factual determination.
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witnessed the shooting and the victim was thrown into the backseat of the vehicle. Further, the
witness’s comments were not so egregious that any perceived prejudice could not have been
removed by an appropriate curative instruction. Beesley, 337 Mich App 54. The witness testified
that she was scared when she made the 911 call, she was still scared because she had witnessed
two men attacking the victim, and one of the assailants had not been apprehended. The witness
also described seeing a violent confrontation in which two assailants attacked a third man, during
which one of the assailants held the victim, and the other assailant shot him multiple times. It is
logical that a witness would feel scared after seeing such an event.
Moreover, the primary issue at trial was defendant’s identity as one of the assailants and
the witness’s testimony was not probative of that issue. The significance of the witness’s testimony
was that the victim arrived at the apartment complex in the vehicle with his two assailants and was
shot there. Defendant did not dispute that the victim was shot at that location or that the victim
was set on fire in the backseat of the vehicle a short distance away. The witness was unable to
identify defendant as one of the two assailants. The witness could only describe the assailants as
a couple of years older and slimmer than the victim. The fact that this witness’s testimony was
not directly probative of identity at trial lessened any perceived prejudice. Haywood, 209 Mich
App at 228-229.
When defense counsel objected to the witness’s comments as she was leaving the witness
stand, the trial court responded that the jury should disregard those remarks. In addition, in its
closing instructions, the trial court instructed the jury that it was to decide the case only on the
basis of the properly admitted evidence, and that it could not let sympathy or prejudice influence
its decision. These instructions were sufficient to protect defendant’s right to a fair trial. See
People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011) (jurors are presumed to follow
their instructions, and the instructions are presumed to cure most errors). Because the witness’s
statements were not so egregious that their prejudicial effect could only be removed by a mistrial,
the trial court did not err by failing to sua sponte declare a mistrial. Accordingly, defendant failed
to demonstrate plain error affecting his substantial rights. Carines, 460 Mich at 762-763; Miller,
326 Mich App at 732.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant submits that he was deprived of the effective assistance of counsel at trial
because counsel (1) failed to move for a mistrial on the basis of the witness’s allegedly prejudicial
remarks discussed in Section III, (2) failed to file a motion to suppress defendant’s cell phone
records, and (3) failed to object to photographs of the victim’s burned body.
A claim of ineffective assistance involves mixed questions of fact and constitutional law.
People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). This Court reviews a trial court’s
factual findings for clear error. People v Ogilvie, 341 Mich App 28, 34; 989 NW2d 250 (2022).
Whether those facts constitute a violation of the defendant’s right to the effective assistance of
counsel is a question of law that this Court reviews de novo. Id.
Defendants have the guaranteed right to the effective assistance of counsel. Strickland v
Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “To establish ineffective
assistance of counsel, defendant must show (1) that trial counsel’s performance was below an
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objective standard of reasonableness under prevailing professional norms and (2) that there is a
reasonable probability that, but for counsel’s errors, a different outcome would have resulted.”
People v Jackson, 292 Mich App 583, 600-601; 808 NW2d 541 (2011). It is presumed that defense
counsel was effective, and a defendant must overcome the strong presumption that counsel’s
performance was sound trial strategy. People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136
(2012). The burden of establishing the factual predicate for a claim of ineffective assistance is on
the defendant. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
A. FAILURE TO MOVE FOR A MISTRIAL
Defendant first alleges that counsel was ineffective by failing to move for a mistrial due to
the witness’s outbursts about feeling scared. We disagree.
As discussed in Section III, the witness’s comments were unresponsive, volunteered
answers to proper questioning, and therefore, not grounds for granting a mistrial. Haywood, 209
Mich App at 228. It was not objectively unreasonable for counsel not to request a mistrial.
Moreover, the witness’s comments were not so egregious that any prejudicial effect could not have
been removed by a curative instruction, Beesley, 337 Mich App 54. The trial court also protected
defendant’s right to a fair trial by instructing the jury to disregard the witness’s remarks that she
made while leaving the witness stand, by instructing the jury that it was to decide the case only on
the basis of the properly admitted evidence, and by instructing the jury that it could not let
sympathy or prejudice influence its decision. Therefore, defendant has not established that he was
prejudiced by counsel’s failure to request a mistrial.
B. FAILURE TO FILE A MOTION TO SUPPRESS
Defendant next asserts that counsel was ineffective for not moving to suppress any
evidence obtained from a search of defendant’s cell phone records. Although this evidence was
obtained pursuant to a search warrant, defendant contends that the warrant was invalid because the
affidavit for the search warrant did not contain sufficient facts to connect the cell phone to the
alleged crimes. We disagree.
A search warrant may not be issued without a showing of probable cause to justify the
search. See People v Brcic, 342 Mich App 271, 277; 994 NW2d 812 (2022), citing US Const,
Am IV; Const 1963, art 1, § 11. Probable cause to issue a search warrant exists if there is a
substantial basis for inferring a fair probability that contraband or evidence of a crime exists in the
location to be searched. People v Brown, 297 Mich App 670, 675; 825 NW2d 91 (2012). A
magistrate’s decision to issue a search warrant is reviewed by examining the search warrant and
underlying affidavit “in a common-sense and realistic manner.” People v Russo, 439 Mich 584,
604; 487 NW2d 698 (1992). The appellate court must determine, under the totality of the
circumstances, “whether a reasonably cautious person could have concluded . . . that there was a
substantial basis for the magistrate’s finding of probable cause.” Id.; see also People v James, 327
Mich App 79, 90; 932 NW2d 248 (2019).
The officer in charge submitted an application for a search warrant to obtain records for a
cell phone number linked to defendant. In his underlying affidavit, the officer set forth facts related
to the shooting at the apartment complex, the officers’ investigation of the circumstances
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surrounding that shooting, an eyewitness’s account of the shooting, evidence found at the shooting
scene, including a black baseball cap with white trim, and the officers’ related investigation of the
vehicle fire at a nearby address. The officer also included information regarding the identification
of the vehicle and discovery of the victim’s burned body inside the vehicle, and the officer’s
conversation with the victim’s family. The officer averred that he spoke with the victim’s brother,
who told the officer that he had heard that defendant killed his brother. The victim’s brother also
told the officer that defendant was with the victim before the shooting and that defendant was
known to wear a black hat with white trim. The officer also spoke to the victim’s mother, who
saw the victim driving a silver Infiniti SUV, which matched a description of the involved vehicle,
on April 1, 2019, around 9:00 p.m. The officer further averred that he reviewed video footage
from a gas station on Seven Mile Road and observed defendant exit the front passenger seat of a
silver Infiniti SUV at 8:08 a.m. on April 2, 2019. The officer also stated that he reviewed footage
from a liquor store on Seven Mile Road from April 1, 2019, at 11:32 p.m. which showed defendant
in a silver Infiniti SUV wearing the same black cap that was recovered from the scene of the
shooting. The officer further set forth that another officer gathered video surveillance of defendant
purchasing the cell phone with the number that the victim’s girlfriend identified as defendant’s
phone number.
We reject defendant’s contention that there were insufficient facts linking defendant’s cell
phone to the charged crimes reflected in the affidavit. The affidavit contained facts that would
allow a reasonably cautious person to conclude that there was a substantial basis to find probable
cause that defendant was linked to both the victim’s shooting death and to the cell phone number
that was the object of the search. And, the officer-affiant averred that, in light of his training and
experience, call detail records were likely to contain information that will aid investigators in
discovering the identity of persons responsible for the crime being investigated. Considering the
totality of the circumstances, the affidavit contained sufficient facts to enable a reasonably cautious
person to conclude that there was a substantial basis for the magistrate’s finding that there was
probable cause that evidence of criminal activity would be found in the call detail records for the
cell phone number linked to defendant. Accordingly, defendant has not demonstrated that the
search warrant was invalid, and therefore, his claim that defense counsel was ineffective for failing
to file a motion to suppress the cell phone evidence fails.
C. FAILURE TO OBJECT TO PREJUDICIAL PHOTOGRAPHS
Defendant also asserts that defense counsel was ineffective for not objecting to the
admission of 25 photographs from the fire scene. Defendant concedes that not all of these
photographs were inadmissible, but he submits that defense counsel should have objected to some
of them, particularly those that depicted the victim’s burned body because they were unfairly
prejudicial under MRE 403. We disagree.
Initially, defendant does not specify which particular photos he believes were inadmissible.
Defendant failed to meet the factual predicate to establish his ineffective-assistance claim by
failing to identify the photographs. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001)
(“Because the defendant bears the burden of demonstrating both deficient performance and
prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his
claim.”). In any event, it is not apparent from the available record that defense counsel was
ineffective for failing to object to various photographs because gruesomeness alone is not a basis
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for excluding photographs. People v Mills, 450 Mich 61, 76; 537 NW2d 909 (1995), mod on other
grounds 450 Mich 1212; 539 NW2d 504 (1995). And, the trial court determined that the
photographs were clearly relevant, not unfairly prejudicial, and pertinent to the offense of
mutilation of a dead body. Therefore, the record does not support defendant’s claim that trial
counsel was ineffective for failing to object to the photos of the victim’s body in the burned vehicle.
V. VALIDITY OF DEFENDANT’S SENTENCE FOR SECOND-DEGREE MURDER
Lastly, defendant contends that the trial court’s sentence of 40 to 50 years for second-
degree murder is invalid because it violates the two-thirds rule of MCL 769.34(2)(b), and is
contrary to People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972). Yet, defendant further
acknowledges that the Tanner rule and MCL 769.34(2)(b) do not apply to sentences where the
statutory maximum punishment is “life or any term of years.” People v Powe, 469 Mich 1032;
679 NW2d 67 (2004). Because this Court and the lower courts are bound by the precedent
established by our Supreme Court until it acts, People v Metamora Water Serv, Inc, 276 Mich App
376, 387-388; 741 NW2d 61 (2007), we reject defendant’s argument that his sentence is invalid.
Id.
Affirmed.
/s/ Kristina Robinson Garrett
/s/ Michael J. Riordan
/s/ Anica Letica
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