JURY TRIAL START TO FINISH Spring Judicial Education Session Overton Hotel & Conference Center Lubbock, Texas March 19-21, 2014

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1 2014 Spring Judicial Education Session Overton Hotel & Conference Center Lubbock, Texas March 19-21, 2014 Wednesday, March 19 1 p.m. 2 p.m. JURY TRIAL START TO FINISH Hon. Jean Spradling Hughes Judge Harris County Criminal Court at Law No. 15

2 JEAN SPRADLING HUGHES is a graduate of South Texas College of Law and received her Bachelor of Arts in Political Science from the University of Texas at Dallas. Hughes has served nine terms as presiding judge of the 15 misdemeanor courts and is former chair of the Harris County Community Justice Council. She has been a member of the board of directors of the State Bar of Texas Judicial Section from 2010 to present and also serves on numerous committees for the State Bar and Texas Center for the Judiciary.

3 JURY TRIALS Start to Finish WHO IS THE BOSS? Judge Jean Spradling Hughes Harris County Criminal Court at Law No Franklin Houston, Texas JURY TRIALS Start to Finish WHO IS THE BOSS? 59

4 The Bottom Line You are in charge You are the legal authority Establish yourself with the jury so they look to you for guidance Attorneys will test you early on. Avoiding the Need for Trial Get involved in plea bargain discussions Control your trial docket and settings Ensure the Attorneys have talked about the case Both sides have reviewed all the evidence Can the State prove its case. Witnesses available Will a suppression hearing resolve issue Was there probable cause for the arrest Is it really a punishment issue Admonish the Defendant 60

5 Pro Se Defendants Absolute right of self representation Advise of rights including appointed attorney Waiver of Attorney Form Court can t guide, direct, assist or instruct Bound by same rules as Prosecutor Inquire of specific statutes Is standby counsel required Anti government defendants 61

6 Setting for Trial Select a trial date Are they willing to waive a jury Back up and set Pre Trial Conference Great opportunity to resolve case Handle issues to avoid sending jury out If suppression issue when will you hear motion Will suppression result in a directed verdict Code of Criminal Procedure Art Pre Trial Defendant must be present Sec. 2 appears to require PTC 17 days prior to trial Suggestion: 10 days to 2 weeks before trial Have attorneys agree on PTC date to avoid Sec. 2 issues Have attorneys review and mark all portions of motions that are agreed Initial and date Notices where no order required If parties never ask you to rule, then don t 62

7 Most Common Motions Discovery Motion Michael Morton Discovery Acknowledgment Brady TRE 404 Character and Extraneous offenses TRE 609 Prior Convictions Motion to Suppress Motion in Limine Michael Morton Discovery Act Amends CCP Article Legislative intent to prevent wrongful convictions Expands types of evidence under Brady v. Maryland Key portion Section 2(j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article. Forms currently in development including possible waivers State under continuing obligation to produce We weren t aware of no longer valid exception Qualifying Jury Panel Administer Oath Determine Juror Qualifications Exemptions Motion to Shuffle Must be made before Voir Dire Commences Commences when State begins its voir dire 63

8 Jury Selection Voir Dire Indoctrination establish yourself as the authority Avoid allowing attorneys to confuse or mislead jurors Educate them as to law, procedure, time lines Speaking the truth Charge + evidence = Deliberations and Verdict Avoid pollution of the panel. Prime them how to respond Whatever bias, prejudice, preconceived notions you may have, can you set those aside and be fair and impartial to both sides in this case and follow the law? Interject yourself. Don t be afraid to interrupt State and Defense Voir Dire Time Limits Judicial Discretion Are questions irrelevant, immaterial or unnecessarily repetitious Were disallowed questions proper Can defendant show not allowed to question jurors who served on jury Educate attorneys as to your procedure Do not allow challenges during attorney voir dire Do not hesitate to interrupt or intervene Shut down chatty or toxic jurors 64

9 Common Objections in Voir Dire Improper commitment Going into facts of case Confusing questions Repetitious Broad or vague questions Challenges/Preemptory Strikes Chapter 35 Code Criminal Procedure Have attorneys hold challenges Have jurors keep seats helps attorneys remember things about them Judge should keep notes on possible Agree to dismiss Challenge for cause Visit with juror at bench AGREE key word to avoid reversal Three preemptory strikes per side Multiple defendants three per defendant with equal number for state Final Jury Seated What s next Administer Oath by Judge or Clerk Admonishments No Direct Contact with any of the parties Communicate through your bailiff Listen Carefully Jurors taking notes and questions from the jury Do not discuss this case amongst yourselves or anyone else No outside research No google, texting, facebook, twitter NOTHING!! Contempt warning/mistrial 65

10 Preliminary Arraignment & Plea Swear Witnesses Rule Invoked Opening Statements Defense may reserve right but you must let them make opening statement if so choose If state does not make opening statement, defense must wait until State Rests General Trial Issues Keep things moving Avoid excusing jury during objections/hearings Don t comment on evidence but you can clarify confusing questions If you lose concentration or suffer from a distraction before an objection, rephrase your question always works Watch your facial expressions Keep a clean record 66

11 Evidentiary Issues DWI When does the actual arrest occur Intoxication not limited to alcohol Judges Role as gatekeeper Kelly/Daubert hearing Deals with admissibility of scientific evidence Is it relevant and reliable HGN and standardized field sobriety test Expert witnesses Videos No audio 67

12 Breath or Blood Test Missouri v. McNeely, 133 S. Ct. 1552, (2013) the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case to sufficiently justify conducting a blood test without a warrant. What constitutes exigent circumstances Case by case basis on totality of circumstances Sufficient time to apply for warrant Good faith effort to contact a judge for a warrant How does this affect cases pre McNeely Evidentiary Issues Assaults and Domestic Violence Prior relationship of parties admissible Uncooperative/non testifying complainants Crawford v. Washington 541 U.S. 36, 124 S. Ct (2004) Admission of out-of-court testimonial statements by a witness who fails to testify at trial violates Sixth Amendment confrontation clause unless witness unavailable to testify and accused had prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the trial court. Is the hearsay statement introduced as testimonial or non testimonial Is it a direct result of police interrogation Has defendant forfeited right by wrongdoing Evidentiary Issues Drug Cases Probable cause for stop and search Has a chemist tested the marihuana If not, is the officer an expert who can positively identify substance as marihuana based on training, experience and knowledge. Chain of Custody Caution Beware if jurors ask to inspect weed! 68

13 HEY JUDGE, PLEASE HAVE BAILIFF BRING US THE WEED AND A CIG LIGHTER. WE WOULD LIKE TO CONDUCT OUR OWN TEST. S/ FOREPERSON Common Objections Use your common sense Rule & Run Objection by intimidation Speaking objections Hearsay Running objections My favorites Rephrase your question Move along counselor Court s Charge, Argument and Verdict Have charge prepared before trial Remind jury what is and is not evidence Confirm admitted evidence with court reporter Time Limits Objections Misstatement of evidence Jury will recall the testimony of witnesses If blatant, sustain and instruct jury to disregard States comment on Defendants failure to testify or striking at defendant through defense counsel Shifting burden of proof to defense Check for valid verdict. Poll jury if requested 69

14 Punishment Judge or Jury Bond no longer valid once defendant found guilty Defense can switch to judge even if filed previous election If no election filed, defaults to Judge Have State and Defense try to reach agreement Arraign defendant if enhancement paragraph Explain how charge works to jury. Don t rely on attorneys Punishment Charge with Probation CHOOSE ONE OF THE FOLLOWING VERDICT We, the Jury, having found the Defendant, name, guilty of the misdemeanor offense of driving while intoxicated, assess punishment at confinement of days in jail. FOREPERSON OR We, the Jury, having found the Defendant, name, guilty of the misdemeanor offense of driving while intoxicated, assess punishment at confinement of days in jail and a fine of $. FOREPERSON IF YOU DESIRE THAT THE DEFENDANT RECEIVE COMMUNITY SUPERVISION ANSWER THE FOLLOWING We, the Jury, further find that prior to the beginning of this trial, the Defendant filed a written sworn motion stating that the Defendant had not previously been convicted of a felony in this or any other state, and that such statement is true. We recommend to the Court that the confinement portion of the punishment be suspended, and the Defendant placed on community supervision. FOREPERSON IF YOU RECOMMENDED THAT DEFENDANT BE PLACED ON COMMUNITY SUPERVISION, ANSWER THE FOLLOWING: We, the Jury, recommend the defendant's driver's license not be suspended. FOREPERSON 70

15 Post Trial Visit with Jurors Answer questions about jury duty and case Warn of issues in talking with attorneys Motions for New Trial Thank you letters to jurors Appeals Trial Court Certification form mandated by Texas Court of Criminal Appeals Notice of Appeal Time Lines New Bond Required Motions for New Trial Bond Conditions Miscellaneous Issues During Trial Bills of Exception Hear while jury deliberating Jury Questions If request evidence, be sure it has been admitted Be careful to not comment on evidence Refer to the courts charge The offense report is not in evidence Answer in writing File with clerk at end of trial Only disputed testimony can be read back to jury Read in open court Allen Charge How long have they been deliberating in relation to evidence What s the split Number only 71

16 REMEMBER YOU ARE THE BOSS 72

17 73

18 74

19 CCCL 15 CAUSE NO. ADA ARGN/PLEA STATE WIT/RULE INV DEF ATTY WITNESSES DEFENSE OFF DATE OPEN STATE ST DEF 9. 9 ~~~~~~~~~~~~~~~~ CHARGE/PUNISH~~~~~~~~~~~~~~~~~~ 10.~~~~~~~~~~~~~~~~- 11.~~~~~~~~~~~~~~~~ 12.~~~~~~~~~~~~~~~~ STATE: EXHIBITS: DEFENSE: #. DESC. OFF OBJ ADM WIT# DATE ~#~-=D=E=S=C~~=O~~O=B=J~A~~W~IT~#~~D=A=T~E 75

20 VOIR DIRE ACTIVITY Jury arrive in hall Judge voir dire State voir dire Defense voir dire Jury Sworn & Admonished Adjourn to return TRIAL 76

21 CAUSE NO. THE STATE OF TEXAS IN THE COUNTY CRIMINAL vs. COURT AT LAW NUMBER HARRIS COUNTY, TEXAS TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL* I, Judge of the trial court, certify this criminal case: is not a plea-bargain case, and the defendant has the right of appeal. [or] is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal. [or] is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal. [or] is a plea-bargain case, and the defendant has NO right of appeal. [or] the defendant has waived the right of appeal. Judge Presiding Date Signed I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of appeals' judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for discretionary review in the court of appeals. Tex. R. App. P I acknowledge that, if I wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which I am currently living or any change in my current prison unit. I understand that, because of appellate deadlines, if I fail to timely inform my appellate attorney of any change in my address, I may lose the opportunity to file a pro se petition for discretionary review. Defendant Defendant's Counsel Mailing address: State Bar of Texas ID Number: Telephone number: Mailing address: Fax number (if any): Telephone number: Fax number (if any): *A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendant's right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court's permission to appeal. TEXAS RULE OF APPELLATE PROCEDURE 25.2(a)(2). CCL Form

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23 JUDGE'S VOIR DIRE THE COURT: Good morning, ladies and gentlemen, welcome to County Criminal Court at Law No. 15. I'm Jean Spradling Hughes, Judge of this court. My apologies, y'all have been standing out in the hall a few minutes. Not too long, but a little bit longer than I prefer. I have a regular docket that starts every morning at 8:30, and it has anywhere from 60 to 100 cases on it. So, we start it at 8:30, try to handle it as much as we can before you arrive. So, sometimes I can't stop the minute y'all get here because I have lawyers waiting. So, my apologies that y'all have been standing out in the hall for a few minutes. You have been summoned to our court this morning to hear a case entitled the State of Texas versus Joel Jones. Mr. Jones, will you stand, please. He is represented by his attorney, Mr. Scott Shearer. MR. SHEARER: Good morning. THE COURT: Be seated, please. The State of Texas is represented by the Harris County District Attorney's office. The Assistant DA's that are assigned to this case in this court are Shannon Drehner. MS. DREHNER: Good morning. THE COURT: We have Lauren Clemons. MS. CLEMONS: Good morning. THE COURT: Does anybody know any of the parties involved in this particular case? I take it by your silence not. Mr. Jones stands charged by information with the offense of driving while intoxicated in Harris County, Texas, on or about December 25th, When I say he is charged by information, the information is this piece of paper. It's called criminal information. That is what you will hear it referred to throughout the trial. It is the document, the means, whereby a person charged with a misdemeanor offense is brought to trial. This document gets filed along with a criminal complaint, it gets you into the system, gets the ball rolling so to speak. It is the charging instrument - It tells the State what they have to prove. It gives the Defense notice of the charges against them. If we were upstairs in a felony court, we would be referring to a criminal indictment. That is where a case goes to a Grand Jury, it's indicted, returned to the court, and then the process begins. But in the misdemeanor courts it's referred to as the criminal information. As I said, it is the charging instrument. It is not evidence of guilt, nor can it be considered as evidence of guilt against Mr. Jones. If I ask you now, if I ask you at the end of jury selection, What do you think, is Mr. Jones guilty, not guilty, or I don't know, your unanimous answer would have to be number 2, that he is not guilty. And that is because under our Constitution we are all presumed to be innocent until the government proves its case against us beyond a reasonable doubt. Does everyone understand that? Anybody disagree with that? Anybody feel like, well, he is sitting here, we are all in this courtroom today, so he must be guilty of something? Anybody feel that way? I'm going to give you a quick lesson in the law so you kind of know kind of familiarize you with some terms that you're going to hear, but you don't have to try to memorize everything. I'm 79

24 going to explain to you how criminal charges get filed, how we are where we are here today in this case. If you think of our legal system as a step ladder, there are different burdens of proof, depending on where you are in the process, legal process, civil or criminal, as to what has to be proven. In a criminal case we start out on the ground floor with what we call reasonable suspicion. If the police have a reasonable suspicion to believe that criminal activity has occurred, is about to occur, an offense has been alleged, then they have the right, the duty, an obligation to conduct an investigation. That is based on their reasonable suspicion. That reasonable suspicion can be something they see, it could be something somebody else sees and reports to them, it could be in response to a 911 call. You can think of any number of ways the police might get involved in a criminal investigation. That is based on reasonable suspicion. Once the police have concluded that investigation, then the next step in that process is what we call probable cause. There has to be probable cause to get this piece of paper and criminal charges filed. Probable cause means that where the facts and circumstances within the officer's knowledge and of which she or he has reasonable and trustworthy information are sufficient unto themselves to warrant a person of reasonable caution that an offense has been committed. What it means, is based on the investigation they believe this person committed this offense in this manner. Now, once the police have finished that investigation, their next step is to contact the intake division here at the courthouse. We have a direct file system in Harris County which operates 24 hours a day. We have district attorneys who are here 24 hours a day to review and accept charges, we have clerks here to process those, and we have judges who work 24 hours a day to review all of those charges that comes in. But that has to be based on probable cause. So, the police call -- once they concluded their investigation or take the information to the assistant DA, present it, the DA, say, Yes, we have probable cause to file these charges or, No, we don't. So, everybody understand where we are to this point? So, we're at the point where this criminal information gets filed. Now that we're here in court today, we're going to jump to the top of our legal ladder, and the State has to prove to you beyond a reasonable doubt that Mr. Jones committed the offense as alleged in this piece of paper. Beyond a reasonable doubt. That is the burden of proof that is used in every criminal case anywhere in the United States. If you watch a lot of television and you hear them talk about a shadow of a doubt this, that, or the other, no, it's beyond a reasonable doubt. It is the highest burden that we have in all of our law because in criminal cases you can face jail or prison time. People are found guilty every day because the government meets that burden. People are found not guilty every day because that burden was not met. Beyond a reasonable doubt, that is what the government has to prove to you today in this case. The thing about beyond a reasonable doubt is we're not going to give you a definition of what that means. You're going to have to decide what that means to you. I can tell you it does not mean beyond all doubt, and it does not mean beyond a shadow of a doubt, but a reasonable doubt. 80

25 Let me go back to our legal ladder and I can show you where this stands in light of the other burdens that we have in law. We talked about reasonable suspicion to investigate, probable cause to file charges. The next burden of proof that we have in law does not apply to this case, but kind of gives you a point of reference, is what we call preponderance of the evidence. It is what we use across the street in civil court. If Connie, my court reporter, and I have a wreck and she sues me, we're going to go to civil court and fight over money and damages. If we get over there and I have a greater weight of the evidence than she does and 51 percent of the evidence is mine, only 49 percent in her favor, then I'm going to win. That is preponderance of the evidence. Now, if we move across the street to family court, and I think Connie is an unfit mother. I think her parental rights should be terminated because she beats her children and she doesn't feed them, she abuses them. I've got to prove in family court by clear and convincing evidence that she is an unfit mother and that all rights should be terminated. So, then the next step up that ladder is beyond a reasonable doubt, what we use in criminal cases. Does anybody have any questions up to this point? And I know this kind of seems like a rush course in law 101, but it's just enough to help you understand what your job is going to be in this particular case. In the same regard as to our Constitution, we all have the presumption of innocence. A defendant has an absolute right to elect not to testify at their trial. No one can force us to testify in any criminal proceeding. If we're the one charged with a crime, whether it's me, you, Mr. Navarro, whoever sitting in that chair, we have an absolute right under our Constitution not to testify. If you do testify, then you judge that person the same as you do any other witnesses. But some people feel like, well, you know, if I'm not guilty of something, I'm going to get up on the stand and tell the world I didn't do it. It doesn't matter why a defendant doesn t testify. If they don't, you won't know why, and it doesn't matter why. Because if they do elect not to testify you cannot, shall not, and will not hold it against them or consider it during your deliberations. Does everyone understand that? The government brings the charges, they have to prove it beyond a reasonable doubt. The Defense has to prove nothing. The Defense can sit there totally mute the whole trial. They don't have to do anything. I guarantee you with Mr. Shearer that is not going to happen though. But that is an absolute -- that could happen. Because the State brings the charges, they have to prove it. Is there anyone here that if the defendant elected not to testify you would let that enter into your deliberations, it would affect your decision making process? If so, raise your hand. And understand here, I'm asking you questions, the lawyers are going to talk to you in a few minutes and they're going to be asking you questions. There are no right or wrong answers to anything that we ask you, only honest answers. That is what this whole jury selection process is about. It's actually a French term called -- if you're in Texas, it's voir dire; if you're anywhere else in the United States, it's voir dire, which is a French term meaning to speak the truth. But in Texas we like to be different. It s like we call DWI, DWI. In other states it's DUI. Here it's DWI. But anyway, it means to speak the truth. This is kind of like a quick job interview. The lawyers are only going to have a few minutes to get to know more about you than they already learned from your juror information sheets. And 81

26 so you've just got to be honest with them, open up, and talk to them. If you don't want to talk about something in front of everyone else this morning, then we can approach the bench and we can talk about that privately. But is there anyone here that if the defendant elected not to testify, and that is a decision he and his lawyer make at the appropriate time, would hold it against the defendant? If so, raise your hands. Is there anyone here that assumes -- that feels that he is guilty just because he is sitting there? If so, raise your hand. Okay. Y'all are perfect jurors this morning. I love that. If you in fact become one of our jurors, you're going to become a judge. I am the Judge of the law, you will be the judge of the facts. I'm really in some sense more like a referee. I make sure that both attorneys follow the rules of evidence, the rules of procedure. If there are any objections to any matters, when they object, I'm going to rule on those objections. But don't take my discussions with the lawyers before I rule as to what I think the facts of the case are, because that is your job. I am the Judge of the law, you are the judges of the facts. It will be your job to listen, watch, observe the witnesses, and you determine the weight and credibility to give all of the witnesses' testimony. You can believe everything a witness says, nothing a witness says, or bits and pieces of what a witness says. It's really all about using your common sense. But what you do have to remember as judges of the facts, that every witness when they get up there to testify, before they -- before they open their mouth, before any words flow out, they all start off with equal credibility. You can't say, well, that is a police officer, I'm automatically going to believe everything he or she says. On the other hand, you can't say that is a police officer, I wouldn't believe a word that person said. And, like I said, regardless of whom they are, how they're dressed, what they do, they all start off with equal credibility. Does everyone understand that? Is there anyone here that would say, well, no, I would automatically give somebody greater or lesser credibility before they testify just because of who they are? For example, if it's a police officer, are you automatically going to give them greater credibility just because of who they are? If so, raise your hands. If you become one of our judges of the facts, it will also be your job, if you find the defendant guilty, to assess punishment. The trial is broken down into two phases. There is the guilt/innocence and then there is the punishment phase. If you find the defendant not guilty, the case is over. If you find the defendant guilty, then we move to the second stage of the trial which is punishment. At the punishment phase you would consider all of the evidence you heard in the guilt/innocence phase. If there is any -- if there is mitigation, background, history, those are the times that you hear that during punishment. Your job during the guilt or innocence phase is to determine whether the defendant is guilty or not guilty. Did the State prove its case beyond a reasonable doubt? As the Judge of the law, what will happen is after you have heard all of the evidence in the case, I will give to you the Court's charge. I will read it to you, but you will take it into the jury room with you. It is the law, the definitions, the instructions that you will follow during your jury deliberations. 82

27 You're going to take the law that I give you in that charge, those instructions, you're going to take the facts that you hear in this courtroom, plug those two in together to reach your decision. Guilty or not guilty. Everyone follow me with that? (If defendant going to judge for punishment, I say the following) As judge, should you find the defendant guilty, it will be my job to assess punishment. Your job is that of judges of the facts, did the State prove its case beyond a reasonable doubt. (If defendant going to jury for punishment, I say the following) Like I said, not guilty, the case is over. If you find the defendant guilty, we move to the second stage, which is the punishment phase. Our legislature, thankfully, in any crime in the State of Texas, has given us very broad ranges of punishment to work with because they feel like the punishment should fit the crime. In a DWI case the punishment range in this particular case ranges from 72 hours in the County jail up to a year in the Harris County jail. Basically three days to a year in the Harris County jail. It can also include a fine up to $4,000 or both, okay. So, it's three days to a year in jail, and up to a $4,000 fine, or both. Also, a person may be eligible for probation. If they are eligible for probation, the jury can recommend, yes, Judge, we found the defendant guilty, here is our sentence, and we want it to be probated. Then I, as the Judge, must probate that sentence if the jury recommends that. I, however, as the Judge, set all of the terms and conditions of that probation. But I must follow your recommendation if you say that probation is the appropriate punishment. The fact that a person is eligible for probation doesn't mean they're entitled to it. If you hear the facts of the case and you think this is not a probation case, then don't even talk about it, don't even consider it. If you feel like it is, then you will be instructed on how to assess the appropriate punishment within that range. So, does everyone understand we have a broad range to fit the facts of the case into? Anybody that could not consider that full range of punishment based on the facts that you're going to hear in this case? And I will tell you now if I haven't already, you are not going to learn during this process, the jury selection process, what the specific facts of this case are. You will not know the specific facts of this case until you're seated as one of our jurors over here and the State begins to produce its evidence. If you have been on a civil case, you know by the time the jury is selected you know who got hurt, how they got hurt, and how much money they want. It doesn't work that way in a criminal case. 83

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