Filed 6/18/13 P. v. Buchanan CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)


THE PEOPLE,                                                                                  C069081

                   Plaintiff and Respondent,                                      (Super. Ct. No. 10-6096)

         v.

RUSSELL ALEXANDER BUCHANAN,

                   Defendant and Appellant.




         A jury convicted defendant Russell Alexander Buchanan of second degree robbery
and found that he personally used a firearm during the offense. In bifurcated
proceedings, the trial court found a prior prison term allegation to be true. The court
sentenced defendant to state prison.
         Defendant appeals. He contends the trial court prejudicially erred in admitting his
confession into evidence, requiring reversal. We find no error and will affirm the
judgment.
                                                        FACTS
         At approximately 8:00 a.m. on January 12, 2009, Erick Delgado was talking on his
cell phone outside his house in Davis when he felt something pushed against his ribs. He



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turned around and saw defendant holding a gun. Defendant ordered, “Give me your
money, motherf[-----].” Delgado gave his wallet containing $40 to $80 to defendant.
Defendant also demanded Delgado‟s cell phone. When Delgado protested, defendant
responded, “Do you want to die, motherf[-----]?” Delgado gave his cell phone to
defendant. Defendant then demanded everything else and Delgado gave some change
from his pockets to defendant. Defendant ordered Delgado to walk away and not to turn
around. Although in front of his own house, Delgado walked to the corner and saw
defendant get in a white car which Delgado had seen minutes before his encounter with
defendant. The car left the area. Delgado flagged down a patrol car which came down
the street shortly thereafter. Delgado described the robbery and the car. Davis Police
Officer Frank Tenedora sent a radio broadcast of the description of the car. About
30 minutes later, Davis Police Officer Benjamin Adams, who had heard the broadcast,
saw the white car and stopped it. Defendant, the passenger, fled on foot, holding his
pants pocket, and leaving behind Delgado‟s cell phone under the front passenger seat.
Officer Adams sent a radio broadcast of defendant‟s description. Davis Police Officer
Jeff Beasley, who had heard Officer Adams‟s broadcast, saw defendant running about a
block from the stopped car. A black hooded sweatshirt which had been described by
Delgado and Officer Adams was found along defendant‟s path. Defendant got away.
Officer Beasley identified defendant as the fleeing passenger. Delgado identified the
white car and the driver. Seven .32-caliber centerfire cartridges were found in the car.
The next day, defendant was interviewed, admitted robbing Delgado, and wrote a letter of
apology to Delgado. The .32-caliber handgun defendant used in the robbery was found in
his girlfriend‟s house.
       Although unable to identify defendant‟s photo the afternoon of the robbery,
Delgado identified defendant at trial which was the first time after Delgado was robbed
that he had seen defendant. The photo of defendant had been taken approximately six
months before it had been shown to Delgado.

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                                      DISCUSSION
        Defendant contends the trial court improperly admitted his confession into
evidence since it was obtained after he validly invoked his right to remain silent. We
disagree. Defendant‟s words and conduct in totality never indicated a present
unwillingness to discuss the robbery. As the trial court determined, defendant did not
invoke his right in a clear and unequivocal manner. We conclude that the trial court did
not err in admitting defendant‟s confession into evidence.
                                       Background
        On January 13, 2009, defendant was interviewed by Fairfield Police Detective
Robert Wilkie while in custody at the Fairfield Police Department. Detective Wilkie,
who had been an officer for more than 15 years, advised defendant of his rights pursuant
to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda), reading from a
POST-approved1 card. Defendant stated that he understood his rights. Detective Wilkie
then asked defendant about a shooting in Fairfield and defendant answered the detective‟s
questions, confessing to shooting the person. During the interview, defendant was
emotional and crying. He admitted he knew he was in trouble and was concerned about a
life sentence, claiming that he had not tried to kill anyone. Defendant stated that he knew
he would have to serve time and confessed to the shooting so he could resolve it and see
his “girlfriend again,” explaining they planned to get married and to have children.
Before Detective Wilkie left the interview room, defendant stated that he thought he
would be charged with attempted murder, get 20 years, and that his life was over. During
the questioning, defendant did not state that he no longer wanted to answer questions.
        Davis Police Detective Scott Allen, who had been an officer for 16 years, arrived
at the Fairfield Police Department while the interview between Detective Wilkie and




1   POST is the acronym for Peace Officer Standards and Training.

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defendant was in progress. Detective Allen watched the interview. After defendant
confessed to the Fairfield shooting, Detective Allen entered the interview room, was
introduced, and joined the conversation with Detective Wilkie and defendant. Prior to
entering the room, Detective Allen asked the Fairfield detective whether defendant had
been provided his Miranda rights and was informed that defendant had been. Detective
Allen spoke to defendant about his cooperation with the Fairfield officers and his drug
binge. Detective Wilkie informed defendant that his photo had been shared with
Detective Allen. Detective Allen then asked about the Davis robbery:
       “[Detective Allen]: Does it surprise you at all that I‟m here?
       “[Defendant]: I guess so, yeah. I mean because this is already too much for me to
handle.
       “[Detective Allen]: Okay. Well, here‟s what I want to do, okay? Um, what I
want to do is get everything done today so you don‟t have to revisit this.
       “[Defendant]: Okay.
       “[Detective Allen]: Okay? And the detectives tell me that you‟re -- you‟ve
actually been doing pretty good lately.
       “[Defendant]: Yes. Except for that s[---].
       “[Detective Allen]: And that you -- that you got a -- and that you got a woman
that you want to make it right with?
       “[Defendant]: Yeah. I know we‟ve been talking about getting married when she‟s
18 and having kids.
       “[Detective Allen]: Okay. That‟s all still possible, getting married.
       “[Defendant]: That‟s only like a year away though. That‟s not possible.
       “[Detective Allen]: Oh, you got a lot of time to get married.
       “[Defendant]: I‟m never getting out.
       “[Detective Allen]: Look, now listen.
       “[Defendant]: And (unintelligible) I‟m going to have nothing.

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        “[Detective Allen]: Listen.
        “[Defendant]: My parents aren‟t going to let me live there either.
        “[Detective Allen]: Okay. What I want to get settled today is everything that
happened while you were out on your little drug binge. Okay? Okay? Everybody makes
mistakes man. Everybody makes mistakes. I don‟t want you to have to pay for it three
years from now.
        “[Defendant]: But I am though. I just got caught up with a little bit of meth and
I‟m still paying for it.
        “[Detective Allen]: No man. Either . . . .
        “[Defendant]: Three years later.
        “[Detective Allen]: Either it happened because it was a mistake because you were
on drugs or whatever or you did these things um, on purpose, like you‟re some master
criminal that just goes out and does this stuff all the time, and I don‟t think that‟s the
case.
        “[Defendant]: No. No.
        “[Detective Allen]: That‟s why I want to get it all settled now.
        “[Defendant]: (Unintelligible).
        “[Detective Allen]: That‟s why I want to get it all settled now.
        “[Defendant]: Okay.
        “[Detective Allen]: Okay. Let‟s talk about Davis, yesterday and let‟s get it done
and over with. We‟re already here.
        “[Defendant]: Okay.
        “[Detective Allen]: Okay? What were you doing in Davis yesterday?
        “[Defendant]: I don’t even really want to talk about it.
        “[Detective Allen]: Come on Russell. I know you don‟t. That‟s obvious. I
wouldn‟t want to either, okay?



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       “[Detective Wilkie]: That photo line up that I told you all my people here in
Fairfield picked you out in there? They recognize the description from a teletype they
sent out and I gave them that photo line up.
       “[Detective Allen]: We use the same -- we used the same line up.
       “[Detective Wilkie]: They used the same line up. Okay?
       “[Defendant]: Yeah, so someone pointed me out I‟m guessing, right?
       “[Detective Allen]: Yeah. Somebody pointed you out.
       “[Defendant]: Man, you probably got fingerprints and all that s[---] and all that
and . . . .” (Italics added.)
       Defendant confessed to the Davis robbery and admitted using the same gun, a
.32-caliber handgun, as he had used in the Fairfield shooting. Defendant explained he
bought the gun off the street for a few hundred dollars. At the conclusion of the
interview, defendant wrote a letter to Delgado, apologizing for the robbery.
       At the preliminary hearing, defendant argued that his confession was inadmissible
having been obtained in violation of Miranda, after he asserted his right to remain silent.
Detectives Wilkie and Allen testified about their interview with defendant and his
statement. Detective Wilkie spoke with defendant intermittently for almost four hours.
During that time, defendant never indicated that he wanted to stop the interview. When
Detective Wilkie left the interview room, Detective Allen asked whether defendant had
been given his Miranda rights. Having been informed that defendant had been, Detective
Allen entered the interview room and questioned defendant about the Davis robbery.
Detective Allen interpreted defendant‟s statement that he did not “really want to talk”
about the Davis robbery as an indication that it was difficult and embarrassing for him to
talk about it based on the interview up to that point. Defendant answered the detective‟s
questions and did not indicate that he wanted the interview to end.
       Concluding defendant‟s statement reflected “an ambiguity in the phrase and an
ambiguity in the context,” the court ruled that defendant did not unequivocally invoke his

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right to remain silent. After reviewing a portion of both the video recording and
accompanying transcript of the interview, the court reaffirmed its ruling, finding
defendant‟s statement was less than and “not as strong a statement of someone saying,
„That‟s it, I shut up,‟ which is what they were dealing with in the [People v. Jennings
(1988) 46 Cal.3d 963 (Jennings)] case.” The court noted that defendant did not say that
he was finished talking, that he did not want to answer any more questions, or that he was
not saying anything else. The court concluded that defendant‟s statement reflected
someone who knew he was in “a bad situation,” not that he did not want to talk anymore.
The court denied defendant‟s motion to exclude the evidence.
       Defendant filed a motion to set aside the information, renewing his argument that
his constitutional right against self-incrimination was violated when Detective Allen
failed to terminate the interview after defendant invoked his right to remain silent which
rendered his confession inadmissible. Defendant claimed there was insufficient
admissible evidence to establish that he committed the offense. The court denied the
motion, concluding that defendant had expressed some discomfort in discussing the
Davis robbery but did not assert his right to remain silent.
       Defendant also raised the issue in his pretrial motion to exclude evidence. The
court denied defendant‟s motion to exclude his confession, concluding that defendant‟s
statement was not “reasonably inconsistent with the present willingness to talk.” The
court noted that defendant had been given his rights by the Fairfield detective, defendant
had spoken with him for “almost an hour before he was introduced to [Detective] Allen,”
and defendant had “freely acknowledged his culpability for several crimes” in Fairfield.
The court also noted that Detective Allen asked “innocuous questions” which defendant
answered, indicating no animosity towards Detective Allen. In analyzing the meaning of
defendant‟s response “I don‟t even really want to talk about it” when asked about his
presence in “Davis yesterday,” the court, having reviewed the video recording,
commented that defendant‟s tone and cadence had not changed and concluded that

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defendant‟s response was not “assertive” but instead was “equivocal.” The court stated
that defendant‟s next response about someone pointing him out made “it clear that he is,
in fact, willing to talk about what happened in Davis.” The court found that defendant
“never made any unequivocal assertion to his right to remain silent.”
                                           Analysis
       Defendant contends the trial court erred in admitting his confession, arguing the
questioning should have ended when he stated that he did not want to talk about the
Davis robbery. We reject defendant‟s contention; thus, we do not reach prejudice.
        We independently review the record to determine whether a Miranda violation
has occurred but “we may „ “give great weight to the considered conclusions” ‟ of the
trial court.” (People v. Nelson (2012) 53 Cal.4th 367, 380 (Nelson).)
       A defendant invokes his right to remain silent “by any words or conduct
reasonably inconsistent with a present willingness to discuss the case freely and
completely.” (People v. Crittenden (1994) 9 Cal.4th 83, 129.) If a defendant indicates in
any manner, prior to or during interrogation, that he is invoking his right to remain silent,
the interrogation must cease. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.)
“ „Whether the suspect has indeed invoked that right, however, is a question of fact to be
decided in the light of all of the circumstances . . . .‟ [Citation.]” (Ibid.)
       A defendant may refuse to answer certain questions “without manifesting a desire
to terminate „an interrogation already in progress.‟ ” (People v. Silva (1988) 45 Cal.3d
604, 629-630 (Silva).) “[A]fter a suspect makes a valid waiver of the Miranda rights, the
need for effective law enforcement weighs in favor of a bright-line rule that allows
officers to continue questioning unless the suspect clearly invokes the right to . . .
silence.” (Nelson, supra, 53 Cal.4th at p. 377.)
       If invoked midinterrogation, a defendant‟s words or conduct must be clear and
unambiguous. (People v. Williams (2010) 49 Cal.4th 405, 434 (Williams), citing
Berghuis v. Thompkins (2010) 560 U.S. 370, ___ [176 L.Ed.2d 1098, 1110]

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(Thompkins).) The words used by defendant must be construed in context. (Williams,
supra, 49 Cal.4th at pp. 433-434 [“ „I don‟t want to talk about it‟ ” not an invocation of
right but rather an expression of frustration with the officer‟s refusal to accept the
defendant‟s repeated denials]; People v. Wash (1993) 6 Cal.4th 215, 237-239 [“ „I don‟t
know if I wanna talk anymore‟ ” not an invocation of right but instead uncertainty
whether he wished to continue]; Jennings, supra, 46 Cal.3d at pp. 977-979 [“ „I‟m not
going to talk . . . [t]hat‟s it‟ ” and “ „I shut up‟ ” in context “reflect[ed] only momentary
frustration and animosity” towards one of the questioning officers, not an invocation of
right]; Silva, supra, 45 Cal.3d at pp. 629-630 [“ „I really don‟t want to talk about that‟ ”
not an invocation of right but desire not to talk about whether he was driving]; In re
Joe R. (1980) 27 Cal.3d 496, 514-516 [when his veracity was challenged and he was
confronted with adverse evidence, the minor responded, “ „That‟s all I have to say‟ ”; not
an unequivocal invocation of his right but simply a statement to the effect of, “That‟s my
story, and I‟ll stick with it”].)
       Here, the question is whether defendant stated his desire to be silent about the
Davis robbery clearly so that a reasonable officer in the circumstances would have
understood defendant to be saying that he wanted to exercise his right to remain silent.
(Nelson, supra, 53 Cal.4th at p. 376.) Defendant claims the trial court‟s conclusion that
he did not is not supportable. We disagree.
       Defendant argues that the trial court‟s reliance upon the interrogation about the
Fairfield shooting for more than an hour was in error since the Davis robbery was
unconnected in time and place to the Fairfield shooting and was discussed with a
different officer. Relying upon Michigan v. Mosley (1975) 423 U.S. 96 [46 L.Ed.2d 313]
(Mosley) and Davie v. Mitchell (6th Cir. 2008) 547 F.3d 297 (Mitchell), defendant argues
that the interrogation about the Davis robbery was a distinct interrogation and that his
decision to waive his Miranda rights with respect to the Fairfield shooting was not
determinative of whether he invoked his rights in connection with the Davis robbery. We

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conclude that the trial court properly considered, along with several other factors,
defendant‟s implied waiver in freely and completely discussing the Fairfield shooting at
length.
          In Mosley, after being read the Miranda warnings, the defendant stated he did not
want to discuss the robberies and Detective Cowie immediately stopped his questioning
of the defendant. More than two hours later, another officer at another location
questioned the defendant about a homicide after giving the defendant the Miranda
warnings. Mosley held the defendant‟s right to cut off questioning by Detective Cowie
was scrupulously honored and did not preclude the later interrogation by another officer.
(Mosley, supra, 423 U.S. at pp. 104-107 [46 L.Ed.2d at pp. 321-323].)
          Here, the Davis robbery interrogation occurred on the same day, at the same place,
and during the same session of questioning, although by a different officer (Detective
Allen). Before defendant was questioned that day, Detective Wilkie read defendant his
rights and he chose to waive them, unlike the defendant in Mosley. Mosley is of no
assistance to defendant.
          In finding that the defendant waived his Miranda rights, Mitchell discussed
Mosley, noting that in both cases the defendant had cut off questioning and after an
interval of time, officers had contacted the defendant. (Mitchell, supra, 547 F.3d at
p. 309.) Disagreeing with the dissent, the majority determined that Mosley “does not
require that the repeated questioning involve a wholly different crime.” (Mitchell, supra,
547 F.3d at p. 310 (lead opn.); id. at p. 322 (conc. opn.) [“ „a second interrogation is not
rendered unconstitutional simply because it involves the same subject matter discussed
during the first interview‟ ”]; id. at p. 331 (dis. opn.) [“[t]he decisive fact allowing new
interrogation in Mosley was the fact that the accused was questioned about an entirely
different crime”].)
          Defendant mistakenly relies upon the dissenting opinion in Mitchell. Further,
there was no second interrogation within the meaning of Mosley.

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       Defendant also complains the trial court erroneously cited the innocuous
questioning by Detective Allen and defendant‟s tone as factors in finding defendant did
not indicate he did not want to discuss the Davis robbery. We reject defendant‟s
complaints. The trial court was discussing the context in which defendant made his
statement; context, of course, was relevant to its ruling. We reject defendant‟s challenge
to the trial court‟s observations of defendant‟s tone when he made his statement. Our
review of the video recording supports the trial court‟s findings that based on defendant‟s
tone and cadence, his statement was not assertive but instead was equivocal.
       Because we conclude that defendant did not clearly invoke his right to remain
silent, we also reject defendant‟s claims that Detective Allen failed to scrupulously honor
defendant‟s invocation of his right to remain silent, that in referring to the photo lineup,
Detective Allen attempted to wear down defendant‟s resistance and make him change his
mind, and that defendant‟s responses afterwards cannot be used to cast doubt on the
clarity of invocation of his right to remain silent. The trial court properly considered
defendant‟s responses afterwards because he had not clearly invoked his right to remain
silent; his responses afterwards reflect that he was willing to discuss the Davis robbery.
       Initially, defendant was questioned by Detective Wilkie about the Fairfield
shooting. Detective Wilkie informed defendant of his rights pursuant to Miranda.
Defendant stated that he understood, conversed with Detective Wilkie about the Fairfield
shooting, and confessed to being the shooter. During the interview with Detective
Wilkie, defendant was emotional, concerned about a life sentence and the impact it would
have on his plans to marry and have children. When Detective Allen entered the room,
defendant had already been advised of his rights pursuant to Miranda and, having
understood his rights, had already willingly answered questions posed by Detective
Wilkie. Detective Allen noted defendant‟s cooperation with Detective Wilkie and
mentioned defendant‟s girlfriend. Emotional and crying, defendant talked about her, his
belief that he would not be able to fulfill their plans to marry and have children, and that

                                             11
he would even lose his parents‟ support in a place to live, because he would be confined
for a long time. Detective Allen encouraged defendant to resolve all crimes that occurred
while he was on his “little drug binge.” When Detective Allen stated, “Let‟s talk about
Davis, yesterday and let‟s get it done and over with” since “[w]e‟re already here,”
defendant responded, “Okay.” When Detective Allen asked what defendant was doing in
Davis “yesterday,” defendant responded, “I don‟t even really want to talk about it.”
Detective Allen further encouraged defendant, “Come on, Russell. I know you don‟t.
That‟s obvious.” When Detectives Wilkie and Allen talked about the Fairfield photo
lineup having been used in Davis, defendant continued the conversation and surmised
that someone had pointed him out in Davis, just as someone had in Fairfield.
          Defendant complains that even Detective Allen had acknowledged defendant‟s
invocation of his right to remain silent when the detective responded, “I know you don‟t.
. . . I wouldn‟t either.” We disagree. A reasonable officer would construe defendant‟s
response, in context, as ambiguous and expressing uncertainty as to whether he wanted to
continue in view of the Fairfield crime to which he had just confessed, the amount of
time he faced for the shooting, and his concern about his girlfriend and their future
plans.2
          We need not discuss the cases defendant cites, comparing and contrasting the
statements the defendants made, because defendant‟s words and conduct in context here
are determinative. (See People v. Martinez (2010) 47 Cal.4th 911, 951.) For example, in
support of his claim that his statement is similar to those statements courts have held
constitute an invocation of the right to remain silent, defendant cites People v. Peracchi




2 At the preliminary hearing, Detective Allen testified that he construed defendant‟s
response as indicating that it was difficult and embarrassing for him to discuss his crime
spree. As defendant states, Detective Allen‟s subjective interpretation is not the test but
instead a reasonable officer test applies. (Nelson, supra, 53 Cal.4th at pp. 376-378.)

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(2001) 86 Cal.App.4th 353. Martinez, supra, 47 Cal.4th 911 discussed Peracchi as
follows: “In Peracchi, after the officer read the defendant his Miranda rights and asked
the defendant whether he wanted to talk, the defendant responded, „At this point, I don‟t
think so. At this point, I don‟t think I can talk.‟ When the officer tried to clarify, the
defendant explained that his head was „not clear enough‟ to discuss the charges against
him „right now.‟ When the officer again tried to clarify, the defendant said, „I don't want
to discuss it right now.‟ The officer asked why, and the defendant then made statements
incriminating himself. [Citation.] The Peracchi court concluded that the officer‟s first
attempts to clarify the defendant‟s statements were proper, but once the defendant stated,
„ “I don‟t want to discuss it right now,” ‟ he was „clearly indicating that he intended to
invoke his right to remain silent‟ and the officer thereafter improperly continued to
interrogate because „[o]fficers have no legitimate need or reason to inquire into the
reasons why a suspect wishes to remain silent.‟ [Citation.] [¶] Although defendant’s
statement here is similar to the one uttered in Peracchi, the context in which it was
uttered is markedly different. Peracchi involved a Miranda waiver, not an invocation
during the course of an interrogation. ‘Invocation and waiver are entirely distinct
inquiries, and the two must not be blurred by merging them together.’ [Citation.] The
defendant in Peracchi invoked his right to silence at the outset of the interrogation,
making clear he did not wish to waive his right to silence at that time.” (Martinez, supra,
47 Cal.4th at p. 951, italics added.) Here, defendant claims he invoked his right to
silence during the course of the interrogation. Peracchi is of no assistance to defendant.
       Contrary to defendant‟s claim, it is not reasonable to construe his statement
midinterrogation as invoking his right to remain silent. Defendant‟s statement, in
context, reflects that he recognized he was in trouble for the Davis robbery as well as the
Fairfield shooting, not that he wanted to stop answering questions. Defendant did not
invoke his right to remain silent. In response to Detective Allen asking about what
defendant was doing in Davis the day before, defendant “did not say that he wanted to

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remain silent or that he did not want to talk [to Detective Allen]. Had he made either of
these simple, unambiguous statements, he would have invoked his „ “right to cut off
questioning.” ‟ [Citation.]” (Thompkins, supra, 560 U.S. at p. ___ [176 L.Ed.2d at
p. 1111].) Instead, after freely discussing the shooting in Fairfield, defendant said that he
“[did not] even really want to talk about” his presence in Davis the day before and then
engaged in further conversation with the detectives. We find no violation of defendant‟s
Miranda rights. The trial court did not err in denying defendant‟s motion to exclude his
confession.
                                       DISPOSITION
       The judgment is affirmed.


                                             BLEASE                     , Acting P. J.


We concur:


         NICHOLSON                  , J.


         BUTZ                       , J.




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