Bryant v. Artus
Filing
16
DECISION AND ORDER denying petition for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/23/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
KEVIN BRYANT,
DECISION AND ORDER
No. 11-CV-1010(MAT)
Petitioner,
-vsDALE A. ARTUS, Superintendent
Wende Correctional Facility,
Respondent.
________________________________
I.
Introduction
Petitioner Kevin Bryant (“Petitioner”), through counsel, has
filed a timely petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 challenging the constitutionality of his custody pursuant to
a judgment entered October 29, 2004, in New York State, County
Court, Monroe County, convicting him, upon a jury verdict, of
Murder
in
the
First
Degree
(N.Y.
Penal
Law
(“Penal
Law”)
§ 125.27[1][a][vi], [b]), and sentencing him to life imprisonment
without the possibility of parole.
II.
Factual Background and Procedural History
A.
Indictment
By Monroe County Indictment No. 2003/392, Petitioner was
charged with first-degree murder (Penal Law 125.27[1][a][vi], [b])
for hiring Cyril Winebrenner (“Winebrenner”) and Cassidy Green
(“Green”) to kill his wife, Tabatha Bryant (“Tabatha”). See Resp’t
Ex. A at A5-A7.
B.
Trial, Verdict, and Sentencing
1.
The People’s Case
Late in November 2002, Green was starting an escort service1
and looked for an attorney to help her start her business.
She
came to find Petitioner, a general practice attorney, by “pick[ing]
his name out of the Yellow Pages.”
Trial Trans. [T.T.] 278-279.
In December 2002, Green went to Petitioner’s law office, where she
encountered
Winebrenner,
who
worked
there.
T.T.
279-280.
Winebrenner was Petitioner’s brother-in-law, as he was the stepbrother of Petitioner’s wife, Tabatha.
Green and Winebrenner
became romantically involved, and, approximately one month later,
she moved in with Winebrenner, who was, at that time, living with
Petitioner and Tabatha and their two young sons at 2 Pennicott
Circle in Penfield, New York. T.T. 279-281. Green testified that,
at the time she initially met Petitioner, she supported herself by
working as an escort and selling cocaine.
T.T. 281.
Green
testified that while she lived in Petitioner’s home, Petitioner and
Tabatha argued frequently.
T.T. 286-289.
Keith Cromwell (“Cromwell”) testified that he met Tabatha in
January of
2003
and
began
a
romantic
relationship
with
her.
According to him, the relationship progressed steadily from the
time the two met until June 2003.
T.T. 55, 58.
1
Green testified that, to her, “escort service” meant “[s]trictly hot oil
rubs, lingerie modeling, dances.” T.T. 279.
-2-
At some point, Petitioner learned of the relationship his wife
was having with Cromwell and hired private investigator Louis Falvo
(“Falvo”) to gather evidence in June 2003.
T.T. 76-77.
Falvo
engaged in surveillance of the couple, which continued until
July 1, 2003.
Thereafter, Falvo briefed Petitioner and provided
him with video documentation of the couple.
Weeks
before
Tabatha’s
death,
T.T. 80-99.
Petitioner
inquiries about how he could kill his wife.
made
several
Green testified that
Petitioner asked her whether $5000 would be enough money to “get
rid of [Tabatha’s] body” and whether Winebrenner would do it.
T.T. 292-293.
Green testified that she spoke with Winebrenner and
later informed Petitioner that Winebrenner had indicated to her
that $5000 was enough and that he would look into how to do it.
T.T. 293-294.
At the end of June 2003, Vince Hoskins (“Hoskins”), who was
living at a friend’s trailer in West Bloomfield where Winebrenner
and Green were also staying at that time, went with Winebrenner to
Petitioner’s
T.T. 460-461.
law
office
on
a
criminal-related
legal
matter.
At Petitioner’s law office, Hoskins testified that
he saw Petitioner give a manila folder to Winebrenner, who opened
it and removed the contents -- “pictures and papers with times and
places written on them.”
T.T. 465.
Hoskins testified that
Petitioner said to Winebrenner, “here’s the things that you asked
for.”
T.T. 466.
According to Hoskins, Petitioner showed him one
-3-
of the photographs and said that it was his wife and her boyfriend.
Petitioner “sounded agitated” and told Hoskins that when he was at
his son’s daycare, a boy approached him and asked if Petitioner was
his son’s “other daddy.”
T.T. 468.
Petitioner then stated to
Hoskins that “he was not going to lose his kids in a divorce.”
T.T. 469.
On July 4, 2003, Petitioner had a dinner party at his house,
at which Tabatha and their two children were present.
testified that she and Winebrenner attended the party.
Green
According
to Green, Petitioner was “very angry” with Tabatha at the party.
T.T. 297.
Green testified that, after dinner, she went upstairs
with Tabatha and Tabatha’s young sons.
As she was proceeding
downstairs, she overheard Petitioner tell Winebrenner, “it’s got to
be done, it’s got to be done now.”
T.T. 298.
The following day,
Petitioner had a cookout at Mendon Ponds Park, which was attended
by Green, Green’s parents, and Tabatha and her young sons.
Green
testified that Petitioner and Tabatha had an argument at the
cookout, and Green left with Petitioner in Petitioner’s car.
T.T. 299-300.
Green and Petitioner drove to the trailer in West
Bloomfield, and Petitioner indicated that he needed to speak with
Winebrenner.
When they arrived at the trailer, Winebrenner came
outside and the two men walked around the front of the trailer
together.
T.T. 300.
-4-
On July 8, 2003, Petitioner approached Timothy Hill (“Hill”),
a friend of Jennifer Burch (“Burch”), one of Petitioner’s clients.
Hill testified that while he was picking up Burch following her
meeting with Petitioner at his law office, Petitioner got into the
passenger
seat
of
the
truck
he
was
driving.
T.T.
494-496.
Petitioner asked Hill what type of work he did and inquired as to
whether Hill did any “demolition work.”
T.T. 496.
Hill testified
that he asked Petitioner what he needed, to which Petitioner
responded by asking if Hill could either “terminate his wife” or
find him a gun.
T.T. 497-498.
Petitioner offered Hill $500 in
advance and another $5000 afterwards, and then showed Hill a
picture of Tabatha and his two children.
T.T. 498-499.
When Hill
asked Petitioner why he wanted to kill his children’s mother,
Petitioner stated that she “crossed him” and he “couldn’t deal with
that.”
T.T. 503.
Hill immediately told Petitioner to get out of
the truck, and, as he did, Petitioner took out a “roll of bills”
from a duffel bag, peeled off $500, and gave it to Hill.
Hill took
the money but testified that he did not intend to harm Tabatha or
get Petitioner a gun.
T.T. 503-504.
Green testified that, on the evening of July 13, 2003, she
called
Petitioner
Petitioner
would
at
be
home
home
to
and
determine
the
whether
location
of
Tabatha
the
and
children.
Petitioner told her that Tabatha was laying down on the couch, the
kids were going to bed, and he was going to be home the rest of the
-5-
night.
Green
testified
that
she
then
told
Petitioner
that
“[Winebrenner] wanted to get everything done.” Petitioner told her
to call him when “[they] [were] on [their] way out.”
Petitioner’s
request,
Green
called
Petitioner
T.T. 305.
when
they
At
were
leaving. T.T. 305-307. Just prior thereto, Winebrenner put rubber
gloves in his pocket and polished the bullets for Green’s .22 bolt
action rifle before reloading it.
Green testified that she and
Winebrenner then got into her pink Monte Carlo, which was loud
because it had no tail pipes or catalytic converter, and drove to
Petitioner’s home.
T.T. 306-309.
When Green and Winebrenner reached Petitioner’s house, all of
the doors leading into the house were locked.
T.T. 310-311.
Green
and Winebrenner went into the garage and looked through various
envelopes that Petitioner had told Green would be under a filing
box and would contain money, but there was no money in them.
T.T. 311-312.
Green and Winebrenner left Petitioner’s garage and
drove to a Noco gas station about two minutes from Petitioner’s
house where Green called Petitioner from a pay phone and told him
that “everything was locked.”
T.T. 313.
Petitioner told Green to
come back and “that everything would be taken care of.”
T.T. 313.
Green testified that, while on the phone with Petitioner, it was
agreed that Winebrenner was to speak with Petitioner when he was
done.
T.T. 312-313, 1185-1186.
-6-
When Green and Winebrenner returned to Petitioner’s house,
“everything was open.”
T.T. 314.
Winebrenner took the rifle and
went into Petitioner’s house alone while Green waited in the car.
While Winebrenner was inside the house, Green heard a sound “like
a small champagne cork.”
T.T. 315.
the car, he was covered in blood.
When Winebrenner returned to
He put the gun in the back seat
and put his jacket in a garbage bag.
T.T. 314-315.
Green drove to
a gas station where Winebrenner changed his clothes. The duo drove
to
a
second
gas
station
where
Winebrenner
bought
beer
and
cigarettes, and then drove to a third gas station where Green
called Petitioner from a pay phone.
T.T. 316-317.
During one of
the trips to the gas station, Green saw Winebrenner pull out an
envelope of money and count $5000.
Winebrenner did not have any
money prior to going to Petitioner’s house.
T.T. 326.
As they
drove home, Winebrenner told Green that he shot Tabatha three times
and “that he had to cut her to make her stop breathing.”
326.
T.T. 325-
Green also saw Winebrenner pull out a large kitchen knife,
wipe it off, and throw it out of the window somewhere near Mendon
Ponds Park.
T.T. 327-328.
Once they returned to the trailer where
they were staying, Winebrenner said that he had to get rid of his
clothes, so the two got back into the Monte Carlo.
When they
realized the car was not working properly, they returned to the
trailer and asked Emily Gibbs (“Gibbs”), Hoskins’s girlfriend, to
borrow their car.
T.T. 329.
Green and Winebrenner put the bag of
-7-
clothes and the gun in the borrowed car and drove to the Town of
Bloomfield where Winebrenner discarded his jacket in a tunnel on
Wesley Road and his t-shirt on Stetson Road.
T.T. 330.
They then
drove to Silvernail Road and discarded Winebrenner’s pants in some
bushes.
T.T.
331.
Then,
they
went
to
Winebrenner put the rifle in his car.
Clay
Street,
T.T. 332.
where
When they
returned to the trailer, Winebrenner packed some clothes in an Army
bag and put the bag in Green’s Monte Carlo.
for Green on the bed.
Winebrenner left $2000
T.T. 333.
Meanwhile, just after midnight, Petitioner called 911 and
reported that his wife had been shot.
T.T. 814-815.
Investigator
James Beikirch, who responded to the crime scene, found no signs of
forcible entry into Petitioner’s home.
T.T. 568.
He testified
that he entered Petitoner’s home through the garage and saw Tabatha
lying on a bed in the den.
T.T. 564.
Petitioner spoke with Road
Patrol Deputy Bridget Davis at the end of the driveway. Petitioner
told her that he had received a phone call from a female about
10 minutes before the shooting, but did not know who had called.
T.T. 720-721.
Petitioner told Deputy Davis that he and his wife
were planning on going to a church retreat that coming Wednesday.
T.T. 724.
He told her that they had been having marital problems
and that Tabatha had been having an affair with Cromwell.
He told
her that he learned about the affair during the last week of April
and hired a private investigator, who had given him photographs of
-8-
Tabatha and Cromwell together. Petitioner told her “that he wanted
Tabatha to get rid of the boyfriend so that they could work on the
two of them, and Tabatha said no.” T.T. 725.
Petitioner indicated
further that he was contemplating divorce proceedings, and noted
that he was an attorney.
T.T. 724-726.
When Deputy Davis asked Petitioner about Tabatha’s death, he
told her that he was upstairs when he heard one or two shots.
According to Petitioner, Tabatha screamed, “oh my God.”
T.T. 732.
Deputy Davis observed that the garage door was open.
Another
deputy who had arrived at the scene, asked Petitioner about the
open garage door, to which Petitioner responded that he probably
forgot to
close
it
when
he
took
out
the trash.
T.T.
734.
Petitioner stated that he came home from work at 10:30 p.m. that
night and had starting taking the trash out.
He then left to get
a cup of coffee and when he came back, he took the rest of the
garbage out. T.T. 735-737. Petitioner also told Deputy Davis that
Winebrenner and Green had lived with them in the past, and Tabatha
was stressed out about them living there and wanted to charge the
two more rent.
T.T. 744-745.
Investigator Paul Siena met with Petitioner at the crime scene
and
asked
Petitioner
Petitioner agreed.
to
go
T.T. 897.
with
him
to
the
police
station.
There, Petitioner told Investigator
Siena that when he got home from work at about 10:30 p.m., he found
his wife upstairs with the children asleep in his bed.
-9-
Petitioner
woke her up and asked if her she wanted to sleep downstairs, since
she was no longer sleeping in the marital bedroom.
T.T. 907-908.
He said that he then took the garbage out and went to get a coffee
at the Noco gas station.
When he saw that it was closed, he
returned home at about 11:15 p.m.
T.T. 908-909.
When he returned
to his house, he saw that Tabatha was asleep on the sofabed.
T.T. 909.
He collected more garbage, took it out to the curb, and
then got ready for bed.
T.T. 910.
Petitioner said that he would
normally lock the doors before he went to bed, but was not sure if
he had locked them that night.
T.T. 974.
Petitioner indicated
that he had received a strange phone call at about 11:50 p.m. –- an
automated MCI operator said he had a collect call.
He accepted the
call but the voice was muddled and he could not hear what the
person was saying, so he hung up.
T.T. 910.
After the phone call,
Petitioner said that he got into bed and began reading.
T.T. 910.
About ten minutes later, he heard two shots and heard his wife
yell, “oh my God.
said
he
then
went
Oh my God.”
Then he heard a third shot.
downstairs,
saw
Tabatha,
and
called
He
911.
T.T. 911.
At around 5:30 a.m., Investigator Siena took a break, and then
resumed questioning Petitioner. T.T. 916. Petitioner said that he
had hired a private investigator after learning that his wife was
having an affair with Cromwell.
come to accept it.
He said that he was upset, but had
T.T. 917-919.
-10-
Petitioner said that, at some
point, he had given Tabatha an ultimatum to choose between him and
Cromwell and that Tabatha had told him not to ask her to do that
because he [Petitioner] would lose.
T.T. 920.
Petitioner told
police that he could not think of anyone who would want to harm his
wife, although he mentioned a man named Rocky, a former client of
his who he knew carried a gun.
T.T. 922-923, 932-933.
Petitioner
told Investigator Siena that Winebrenner and Green had lived with
Petitioner and Tabatha, and that “some bad blood had arisen”
between his wife and Winebrenner, while Petitioner and Winebrenner
had
grown
close.
T.T.
926.
When
Investigator
Siena
asked
Petitioner who might have been capable of murdering his wife, he
said that, given the right circumstances, “we are all capable.”
T.T. 931.
At that point, Petitioner’s demeanor changed, and he
avoided eye contact and began tapping his fingers on the table.
T.T. 931.
Investigator Siena then informed Petitioner of his
Miranda rights, which Petitioner waived.
Investigator
Petitioner
that
Siena
he
did
T.T. 933-934.
testified
that,
not
Petitioner
think
one
point,
was
he
telling
told
him
everything, to which Petitioner responded that he felt responsible.
Petitioner’s hands were shaking, his eyes began to tear, and he
started tapping his feet.
T.T. 963.
Petitioner said that he
“wanted to get rid of [his wife]” and that the divorce papers were
ready but had not been filed.
T.T. 965.
When Investigator Siena
asked Petitioner if there were any other reasons that he felt
-11-
responsible,
Petitioner
stated
to
him,
“let’s
just
say
I’m
responsible.” T.T. 966. Investigator Siena asked Petitioner if he
was admitting involvement in the murder, to which Petitioner
responded that he was not saying anything.
Investigator Siena
again began talking to Petitioner about his marital problems.
During this conversation, Petitioner told him that his wife “had an
ability to push the buttons.”
T.T. 981.
Investigator Siena asked
Petitioner if he killed his wife, to which Petitioner responded
that he could not answer that question.
T.T. 981-982.
Petitioner
then asked to used the restroom and, as he walked away, he began to
cry.
Investigator Siena asked Petitioner if he was okay, and
indicated that the police would get to the bottom of the matter.
In response, Petitioner stated that “[they] better, or he’d f-ing
kill[] [Investigator Siena].”
At
Petitioner’s
house,
T.T. 983.
police
recovered
from
the
master
bedroom a bank envelope containing $3500 in $100 bills found
between the mattress and boxspring.
T.T. 574-578.
Winebrenner’s
clothing was later recovered from the locations that Green had
described. Green led the police to Petitioner’s jacket. T.T. 334,
590.
Winebrenner’s shirt was recovered by a local resident who
turned it over to the police.
T.T. 267-269, 593-595.
Police
executed a search warrant on Winebrenner’s Pontiac on Clay Road and
recovered a 22 bolt action rifle from the trunk of his car.
T.T. 586. Blood stains recovered from the rifle and Winebrenner’s
-12-
jacket matched Tabatha’s DNA.
T.T. 1235.
The bullet recovered
from Tabatha’s body was consistent with having been fired from a
22 bolt action
rifle.
T.T. 881-886.
Baylea Woods (“Woods”) testified that, on the night of the
murder, she was visiting a friend that lived across the street from
Petitioner.
T.T. 255.
She testified that, around 11:00 p.m., she
observed an “older” red car pull into Petitioner’s driveway, leave
five minutes later, and then return about thirty minutes later.
T.T. 256-257.
She testified that the car was “really loud.”
T.T. 256.
Deputy Medical Examiner Dr. Caroline Dignan testified that
Tabatha suffered a gunshot wound to the right eye and multiple stab
wounds to her neck, upper chest, back, and arm.
1255.
T.T. 1245, 1250,
The main cause of death was multiple stab wounds, and the
gunshot wound was a significant contributing factor.
2.
T.T. 1262.
The Defense’s Case
Reverend Michael Allen, pastor of Community Church of Christ
in Penfield, New York, testified that Petitioner had discussed his
family problems with him in mid-June 2003.
According to him,
Petitioner and his wife were trying to work out their problems and
were planning to go on a church retreat.
T.T. 1330-1333.
Kathleen
Barone, Petitioner’s legal secretary, testified that Petitioner had
told her that he planned on attending the church retreat from
July 16 through July 20.
T.T. 1289-1291.
-13-
Gibbs testified that, at about 11:00 p.m. on the night of the
murder, Green and Winebrenner borrowed her 1990 Geo Prism.
1298, 1301.
T.T.
Gibbs testified that she heard the two drive away in
her car and could distinguish the noise that her car makes from the
noise of Green’s car.
T.T. 1300-1301.
According to Gibbs, Green
and Winebrenner returned with Gibbs’s car three hours later.
1302.
T.T.
On cross-examination, Gibbs repeatedly invoked the Fifth
Amendment when questioned about her drug use and drug dealings.
T.T. 1304, 1307.
She testified that her memory of the night of the
murder was not good and that she had signed a sworn statement that
she did not remember whether Green and Winebrenner had driven the
Monte Carlo.
T.T. 1308-1310.
Tyrone Singletary (“Singletary”) testified that he had been at
a party across the street from Petitioner’s house on the night of
the murder.
He testified that about 11:45 p.m., he went outside
and saw a light blue four-door sedan pull into the driveway across
the street.
T.T. 1316-1318.
He testified that the car looked
similar to a photograph of Gibbs’s Geo Prism.
T.T. 1320, 1324.
According to him, the headlights and the taillights of the car
flashed four or five times. T.T. 1319-1320. On cross-examination,
Singletary acknowledged that when the police interviewed him on
July 13, 2003, he was unable to remember what time he had seen the
car, and stated that the car may have been a Nissan Ultima.
Three
weeks later when he spoke with the police, Singletary told the
-14-
police that the vehicle he saw was a “95-97" Nissan.
T.T. 1322-
1325.
3.
The Verdict and Sentence
At the close of the trial, Petitioner was found guilty as
charged,
and
was
sentenced
to
life
imprisonment
without
the
possibility of parole. T.T. 1615; Sentencing Mins. [S.M.] S.M. 35.
D.
The Direct Appeal
Through
counsel,
Petitioner
appealed
his
judgment
of
conviction in the Appellate Division, Fourth Department on the
following grounds: (1) the trial court improperly permitted the
jury to consider a theory of prosecution that was not included in
the indictment, as amplified by the bill of particulars; and
(2) the trial court improperly admitted evidence of Petitioner’s
uncharged attempt to hire Hill to kill his wife.
See Resp’t Ex. B.
The
the
Appellate
Division
unanimously
conviction on June 11, 2010.
(4th Dep’t 2004) (Resp’t Ex. E).
affirmed
judgment
of
People v. Bryant, 74 A.D.3d 1794
Petitioner subsequently moved for
reconsideration (Resp’t Ex. F), which was denied On October 1,
2010. Bryant, 77 A.D.3d 1458 (4th Dep’t 2010) (Resp’t Ex. H).
The
New York Court of Appeals denied leave to appeal, and Petitioner’s
subsequent motion for reconsideration was also denied.
15 N.Y.3d 919 (Resp’t Exs. I, O).
-15-
Bryant,
E.
The Federal Habeas Proceeding
This habeas corpus petition followed, wherein Petitioner seeks
relief on the same two grounds he raised on direct appeal.
See
Pet. at 6-37 (Dkt. No. 1); Pet’r Mem. of Law, Points I-II (Dkt.
No. 2).
Respondent filed a Response and Memorandum/Brief in
opposition to the petition (Dkt. Nos. 8, 9), and Petitioner filed
a Reply thereto (Dkt. No. 13).
For the reasons that follow, Petitioner’s request for a writ
of habeas corpus is denied and the habeas petition is dismissed.
III. The Exhaustion Requirement
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State. . . .”
28
U.S.C. § 2254(b)(1)(A);
see, e.g., O’Sullivan v. Boerckel, 526
U.S. 838, 843-44 (1999);
accord, e.g., Bossett v. Walker, 41 F.3d
825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995).
“The
exhaustion requirement is not satisfied unless the federal claim
has been ‘fairly presented’ to the state courts.” Daye v. Attorney
General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied,
464 U.S. 1048 (1984).
Petitioner’s claims, which were raised in
-16-
federal constitutional terms in the state court, are exhausted and
properly before this Court.2
IV.
The AEDPA Standard of Review
For federal constitutional claims adjudicated on the merits by
a state court, the deferential standard of review codified in the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies.
A habeas petitioner can only obtain habeas corpus relief by showing
that the state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or was based
on “an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
§
2254(d)(1)-(2).
As
the
parties
correctly assert
28 U.S.C.
in their
respective papers, Petitioner’s habeas claims were adjudicated on
the
merits
in
state
court
and
the
AEDPA
standard
of
review
therefore applies to them.
V.
Analysis of the Petition
1.
Petitioner’s Sixth Amendment Right to Fair Notice of the
Charges Against Him was Not Violated
Petitioner argues, as he did on direct appeal, that his Sixth
Amendment right to fair notice of the charges against him was
violated when the trial court improperly permitted the jury to
2
The parties do not dispute the issue of exhaustion, and agree that the
habeas claims are exhausted for purposes of federal habeas review. See Pet.
¶ 22A-B; Resp’t Mem. of Law at 13.
-17-
consider a theory of prosecution that was not included in the
indictment, as amplified by the bill of particulars.
6-12.
See Pet. at
The Appellate Division rejected this claim on the merits
(Bryant, 74 A.D.3d at 1794-95), and thus the AEDPA applies.
Under
that standard, the claim is meritless.
A violation of the federal constitution’s due process clause
results when a criminal defendant is convicted of a crime he was
never charged with committing: “No principle of procedural due
process is
more
clearly
established
than
that
notice
of
the
specific charge, and a chance to be heard in a trial of the issues
raised by that charge . . . are among the constitutional rights of
every accused.”
Cole v. Arkansas, 333 U.S. 196, 201 (1948)
(citation omitted);
accord, e.g., Ricalday v. Procunier, 736 F.2d
203, 207 (5th Cir. 1984).
The indictment, which must provide the
defendant with fair notice of the accusations against him so that
he will be able to prepare a defense, prevents the prosecutor from
usurping the powers of the Grand Jury by ensuring that the crime
for which defendant is tried is the same crime for which he was
indicted,
rather
than
some
alternative
seized
upon
by
the
prosecution in light of subsequently discovered evidence. In other
words, the indictment serves to protect a defendant from variances
in proof.
Finally, an indictment prevents later retrials for the
same offense in contravention of the constitutional prohibition
against double jeopardy. From a federal constitutional standpoint,
-18-
proof
at
trial
that
varies
from
the
indictment
potentially
compromises the functions of the indictment to guarantee the
defendant his Sixth Amendment right to fair notice of the charges
against him.
United States ex rel. Richards v. Bartlett, No.
CV-92-2448, 1993 U.S. Dist. LEXIS 12743, 1993 WL 372267, at *4
(E.D.N.Y.
Sept.9,
1993)
(“However,
the
general
rule
that
an
accusatory allegation, such as an indictment, and proof at trial
must correspond rests not only upon the grand jury clause of the
Fifth Amendment but also on the requirements (1) that the accused
be protected against another prosecution for the same offense; and
(2) that the accused be informed of the charges against him, so
that he may present his defense without being taken by surprise by
evidence offered at trial.”) (citing Berger v. United States, 295
U.S.
78,
83
(1935).”)).
In
applying
these
constitutional
principles to the instant case, Petitioner’s claim is meritless.
Here, the indictment charged Petitioner with first degree
murder, and specifically stated as follows:
[t]he defendant, on or about July 13, 2003, in
the County of Monroe, State of New York, being
more than eighteen (18) years old at the time,
with intent to cause the death of Tabatha
Bryant, he solicited, requested, commanded,
importuned, and/or intentionally aided another
person or persons to cause the death of
Tabatha Bryant, and the other person or
persons caused the death of Tabatha Bryant by
shooting her with a rifle and stabbing her
multiple times with a knife, and the defendant
procured the commission of the killing
pursuant to an agreement with a person or
persons other than the intended victim to
-19-
commit the same for the receipt, or in
expectation of the receipt, of anything of
pecuniary value from a party to the agreement
or from a person other than the intended
victim acting at the direction of a party to
such agreement.
See Resp’t Ex. A at A5-A-7.
The indictment tracked the language of
the statute defining the first-degree murder charge as well as New
York’s accessorial liability statute.
125.27[1][a][vi],
[b].
See Penal Law §§ 20.00,
Furthermore,
the
indictment
was
supplemented by a bill of particulars, which alleged that the crime
occurred, “[o]n or about July 13, 2003, approximately between 11:45
p.m. and 12:00 midnight, at or near 2 Pennicott Circle, in the Town
of Penfield, County of Monroe, State of New York.”
A at A1629.
See Resp’t Ex.
The bill of particulars further informed Petitioner
that he was being accused of acting as both an accomplice and a
principal.
The People refused to provide additional information
about the substance of the allegations that Petitioner acted as an
accomplice to the killing because that information was outside the
scope of the bill of particulars.
The People did provide the
following information in response to Petitioner’s request:
[a]s a practical matter, defense counsel is
aware that Cyril Winebrenner has been indicted
as an accomplice in the shooting and stabbing
death of Tabatha Bryant, and that Cassidy
Green has a homicide charge pending the action
of the Monroe County Grand Jury as an
accomplice in causing the death of Tabatha
Bryant. It is alleged that Kevin Bryant made
an agreement with Cyril Winebrenner and/or
Cassidy Green to kill Tabatha Bryant for a sum
of United States currency, and made payment
-20-
pursuant to such agreement upon performance of
the agreement. The People refuse to state any
further
particularization
of
the
kind
requested, as such is beyond the scope of a
bill of particulars in that it requests
evidentiary information pertaining to how the
People intend to prove the elements of the
offense charged.
See Resp’t Ex. A at A1630-31.
As Respondent points out, the proof
at trial substantially corresponded to the information contained in
the indictment and the bill of particulars.
at 18.
See Resp’t Mem. of Law
Green’s testimony established that Petitioner had made an
agreement with Winebrenner to kill Tabatha.
Petitioner agreed to
pay Winebrenner $5000 for committing the crime.
Late on the night
of July 13, 2003, Green and Winebrenner drove to Petitioner’s house
at 2 Pennicott Circle to carry out the murder Petitioner had hired
them to commit.
When Winebrenner and Green got to Petitioner’s
house, they could not gain entry because the doors were locked.
Green called Petitioner, and Petitioner told them that he would
take care of it and directed them to come back.
When they did, the
doors were unlocked, allowing Winebrenner to enter the house. Once
inside, Winebrenner shot Tabatha in the head and stabbed her
multiple
times,
causing
her
death.
Petitioner
then
paid
Winebrenner $5000 per the agreement. This trial evidence conformed
to the charge, time, place, nature and circumstances of the offense
set
forth
in
particulars.
the
indictment,
as
amplified
by
the
bill
of
See United States v. Tramunti, 513 F.2d 1087, 1113
(2d Cir. 1975) (“an indictment need do little more than to track
-21-
the language of the statute charged and state the time and place
(in approximate terms) of the alleged crime.”).
Despite the above discussion, Petitioner maintains that the
bill of particulars excluded the possibility of his role as an
accomplice
as involving anything other than hiring and paying
Winebrenner to kill his wife.
See Pet’r Mem. of Law at 4-5.
The
Court rejects this contention insofar as Petitioner’s argument is
based simply on an inaccurate/selective reading of the bill of
particulars. In that document, the People did not state that there
were no additional facts to establish Petitioner’s accessorial
liability (see Resp’t Ex. A at A1630-31);
refused
to
provide
further
details
rather, the People
regarding
the
allegations
establishing his role as an accomplice, correctly indicating that
they were not required to provide evidentiary information about how
they
would
prove
the
elements
of
the
offense
charged.
See
Tramunti, 513 F.2d at 1113.
Moreover, the trial court’s jury instructions on accessorial
liability did not, as Petitioner alleges, alter the prosecution’s
theory of
the
compromised.
case
such
that
his constitutional
rights
were
As explained above, both the indictment and the bill
of particulars specifically alleged that Petitioner acted both as
a principal and as an accomplice in the murder of Tabatha.
Indeed,
the indictment itself tracks the accessorial liability language of
Penal Law § 20.00 and specifically cites thereto.
-22-
Furthermore,
under New York Law, “[t]here is no distinction between liability as
a principal and criminal culpability as an accessory[,] and the
status for which the defendant is convicted has no bearing upon the
theory of the prosecution.”
People v. Duncan, 46 N.Y.2d 74, 79-80
(1978); see also People v. Guidice, 83 N.Y.2d 630 (1994) (“A state
indictment need not allege whether a defendant is charged as a
principal or an accomplice, and the distinction generally is
considered ‘academic.’”);
People v. Rivera, 84 N.Y.2d 766 (1995)
(the elements of a crime remain the same regardless of whether a
defendant is charged as a principal or as an accomplice).
This
means that the jury could have convicted Petitioner of first-degree
murder either as a principal or as an accomplice, and the choice it
made in that respect is of no moment.
The evidence presented at
trial permitted the jury to conclude that Petitioner acted as a
principal by procuring Green and Winebrenner to kill his wife, and
the
same
Petitioner
evidence
acted
also
as
an
permitted
the
accomplice
to
jury
the
to
act
conclude
of
that
killing
by
unlocking the doors to his home so that Winebrenner could enter and
kill Tabatha.
Similarly, there is no merit to Petitioner’s contention that
the trial court’s instruction on the first-degree murder statute -–
i.e., that the jury could consider the evidence presented at trial
in support of the “killer” portion of the statute as well as the
“procurer” portion -- allowed the jury to consider a theory of
-23-
prosecution that was not alleged in the indictment and bill of
particulars, thereby compromising his constitutional right to fair
notice of the charges against him. With respect to this particular
issue, the Appellate Division determined that the trial court erred
in charging the jury that the People had to prove
beyond a
reasonable doubt that Petitioner committed the killing or procured
the commission of the killing pursuant to an agreement, rather than
charging
only
that
defendant
procured
the
killing.
See Bryant, 74 A.D.3d at 1794-95.
commission
of
the
As an initial matter,
claims based on errors in jury instructions are matters of state
law that do not ordinarily raise federal constitutional questions.
See McEachin v. Ross, 951 F. Supp. 478, 483 (S.D.N.Y. 1997) (“Mere
questions of state law are not grounds for federal habeas relief.")
(citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Errors in
state jury charges are questions of state law and are therefore not
reviewable on federal habeas corpus absent a showing that “the jury
charge deprived the defendant of a federal constitutional right.”
Id. (citing Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990)).
The standard of review of state jury instructions in a habeas
petition is “not whether ‘the instruction is undesirable, erroneous
or even universally condemned [but whether] the ailing instruction
by
itself
so
infected
the
entire
conviction violates due process.’”
trial
that
the
resulting
Id. (quoting Wright v. Smith,
569 F.2d 1188, 1191 (2d Cir. 1978) (quoting Cupp v. Naughten, 414
-24-
U.S. 141, 146-7 (1973)));
see also Blazic, 900 F.2d at 541.
Thus,
despite the trial court’s error, Petitioner is still required to
make a showing of prejudice in order to obtain habeas relief.
The
Appellate Division reasonably determined, in denying this claim,
that the People maintained throughout all phases of the case that
Petitioner procured the commission of the killing of Tabatha by
making an agreement with Green and Winebrenner to kill her for a
sum of money.
Finally, Petitioner’s reliance on a habeas case decided by the
Ninth Circuit, Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1989), to
support
his
claim
is
misplaced.
Petitioner
argues
in
his
supporting memorandum and his reply that this case “is on-point in
all respects.”
See Pet’r Mem. of Law at 28-45; Reply at 3.
In
that case, the petitioner was charged with one count of murder and
was tried before a jury on the theory that the killing was
premeditated
and
deliberate.
The
prosecution
requested
that
instructions be given on felony-murder, and the trial court granted
the instruction even though felony-murder had never been mentioned
during the trial.
The jury subsequently convicted the petitioner
without indicating the legal theory on which it had relied.
The
district court denied the Petitioner’s request for a writ of habeas
corpus, which alleged a violation of his Sixth Amendment right to
fair notice of the charges against him.
On appeal, the Ninth
Circuit reversed the judgment and granted the writ, finding that
-25-
the petitioner did not receive adequate notice to enable him to
prepare a proper defense to a charge of felony-murder, and the
violation of his Sixth Amendment rights was not harmless error.
See Sheppard, 909 F.2d at 1234-1238.
This case is legally and
factually unlike Petitioner’s case, and lends no support to his
argument.
In Sheppard, the trial court instructed the jury on a felonymurder theory despite the fact that neither felony-murder nor the
underlying charge of robbery was listed in the charging information
and “[a]t no time during pre-trial proceedings, opening statements,
or the taking of testimony was the concept of felony murder raised,
directly or indirectly.”
Id. at 1235.
Furthermore, the State
conceded in Sheppard that Petitioner’s Sixth Amendment right to
notice and opportunity to prepare a defense had been violated
“‘because a pattern of government conduct affirmatively misled the
defendant.’” Id. at 1236.
That is not the case here.
Unlike
Sheppard, Petitioner was prosecuted and convicted for exactly the
same crime for which he was indicted, to wit: first degree murder,
in violation of New York’s so-called “murder for hire” statute
(Penal Law § 125.27[1][a][vi], [b]).
The People theorized that
Petitioner acted as an accessory to the act of killing and that he
procured the commission of the killing pursuant to an agreement,
and
that
theory
remained
consistent
throughout
the
trial.
Petitioner was apprised of the nature of the charges against him
-26-
from the inception of the case and was afforded the opportunity to
defend against same at every stage of the trial, including pretrial
proceedings,
the
presentation
of
evidence
and
cross-
examination, and closing.
In sum, Petitioner has failed to show that the state courts
engaged in an unreasonable application of clearly established
Federal law, as determined by the Supreme Court, or rendered a
decision based on an unreasonable determination of the facts in the
record.
The claim is meritless and is therefore denied in its
entirety.
2.
Petitioner was Not Deprived of a Fair Trial by Admission of
Prior Bad Act Evidence
Petitioner argues, as he did on direct appeal, that his due
process rights were violated when the trial court improperly
admitted evidence, pursuant to People v. Molineux, 168 N.Y. 264
(1901), of Petitioner’s prior bad acts, namely a prior attempt by
Petitioner
to
have
his
wife
killed.
See
Pet.
at
13-37.
Specifically, he claims that the trial court improperly permitted
the prosecution to introduce testimony from Burch and Hill that
Petitioner had attempted to hire Hill to kill Tabatha for $5000
prior to her murder. The Appellate Division rejected this claim on
the merits.
Bryant, 74 A.D.3d at 1795.
As discussed below, this
claim is meritless and does not warrant habeas relief.
As an initial matter, a federal habeas court “is limited to
deciding whether a conviction violated the Constitution, laws, or
-27-
treaties of the United States.”
68 (1991).
Estelle v. McGuire, 502 U.S. 62,
It is well-settled that “[e]rroneous evidentiary
rulings do not automatically rise to the level of constitutional
error sufficient to warrant issuance of a writ of habeas corpus.”
Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983).
Instead, for a
habeas petitioner to prevail in connection with a claim regarding
an evidentiary error, the petitioner must demonstrate that the
error deprived him of his right to “a fundamentally fair trial.”
Taylor, 708 F.2d at 891;
see also Zarvela v. Artuz, 364 F.3d 415,
418 (2d Cir. 2004) (“Even erroneous evidentiary rulings warrant a
writ of habeas corpus only where the petitioner ‘can show that the
error deprived [him] of a fundamentally fair trial.’” (quoting
Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) (internal
quotation marks omitted))).
In determining whether a state court’s alleged evidentiary
error deprived petitioner of a fair trial, federal habeas courts
engage in a two-part analysis, examining (1) whether the trial
court’s evidentiary ruling was erroneous under state law, and
(2) whether the error amounted to the denial of the constitutional
right to a fundamentally fair trial.
F.3d
51,
59-60
&
n.7
(2d
Cir.
See Wade v. Mantello, 333
2003);
Ramos
v.
Phillips,
No. 104-CV-1472-ENV, 2006 U.S. Dist. LEXIS 89699, 2006 WL 3681150,
at *6 (E.D.N.Y. Dec 12, 2006).
Despite Petitioner’s position to
the contrary (see Pet’r Mem. of Law at 48), the trial court’s
-28-
ruling was not erroneous as a matter of state law, and, even
assuming it was (a finding which this Court does not make), it
cannot
be
said
that
such
error
amounted
to
the
denial
of
Petitioner’s constitutional right to a fair trial.
Under New York law, “[a] trial court may admit into evidence
uncharged crimes when the evidence is relevant to a pertinent issue
in the case other than a defendant’s criminal propensity to commit
the
crime
charged.”
People
v.
Till,
87
N.Y.2d
835
(1995).
However, “[e]ven then, such evidence is admissible only upon a
trial court finding that its probative value for the jury outweighs
the risk of undue prejudice to the defendant.”
omitted).
Id. (citations
In People v. Molineux, the New York Court of Appeals
stated that “[g]enerally speaking, evidence of other crimes is
competent to prove the specific crime charged when it tends to
establish (1) motive; (2) intent; (3) the absence of mistake or
accident; (4) a common scheme or plan embracing the commission of
two or more crimes so related to each other that proof of one tends
to establish the others; (5) the identity of the person charged
with the commission of the crime on trial.”
In
this
case,
the
Burch/Hill
169 N.Y. at 293-94.
testimony
that
Petitioner
attempted to hire Hill to kill Tabatha was properly admitted under
New York law to establish Petitioner’s intent and motive to commit
the crime.
That Petitioner had previously offered to pay Hill
money in exchange for killing his wife was strong evidence that
-29-
when Petitioner made the same proposition to Winebrenner, he
intended to procure his wife’s murder.
Further, Hill’s testimony
that Petitioner had stated to him that his wife had “crossed him
[Petitioner]”
and
that
Petitioner
“couldn’t
deal
with
that”
established Petitioner’s motive for wanting to kill Tabatha.
In
cases of domestic violence, prior violent behavior against the same
victim has been found to be admissible to establish motive and
intent.
See People v. Kelly, 71 A.D.3d 1520 (4th Dep’t 2010);
People v. Harvey, 270 A.D.2d 959 (4th Dep’t 2000);
see also People
v. Bierenbaum, 301 A.D.2d 119, 150 (1st Dep’t 2002) (“There is
little or nothing by way of circumstantial evidence that is more
relevant or more probative [than evidence of motivation and intent]
in a circumstantial murder case.”), lv. denied, 99 N.Y.2d 626
(2003)).
Moreover, the trial court acted well within its discretion in
finding that the probative value of that evidence outweighed its
prejudicial
effect,
and
appropriately
prejudice through limiting instructions.
minimized
any resulting
Although, as Petitioner
points out, the trial court did not explain to the jury at the
particular time the witnesses were presented that it could not
consider the Hill/Burch testimony as evidence that Petitioner
committed the crime charged in the indictment (see Pet’r Mem. of
Law at 61; T.T. 487-505, 670-686), the court did explain the
-30-
concept to the jury in a final jury instruction.
The trial court
judge explicitly and clearly stated as follows:
I have allowed the People to introduce
evidence that on another occasion this
defendant has committed an anti-social, wrong
or bad acts, namely that the defendant talked
about having his wife killed with two other
persons. These facts, if accepted by you as
truthful
and
accurate,
are
not
proof
whatsoever that the defendant possesses a
propensity or disposition to commit the crime
charged or any other crime. The People offer
this evidence solely for the purpose of
establishing motive and intent.
T.T. 1586.
Moreover,
even
assuming
the
state
trial
court
erred
in
admitting the evidence, any error did not deprive petitioner of his
right to a fair trial.
Federal courts reviewing evidentiary
matters may issue a writ of habeas corpus only if the petitioner
demonstrates
that
the
alleged
evidentiary
error
violated
a
constitutional right and that the error “was so extremely unfair
that its admission violates fundamental conceptions of justice.”
Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.1998) (internal
quotation omitted). “For the erroneous admission of other unfairly
prejudicial evidence to amount to a denial of due process, the item
must have been ‘sufficiently material to provide the basis for
conviction or to remove a reasonable doubt that would have existed
on the record without it.’”
Id. (quoting Johnson v. Ross, 955 F.2d
178, 181 (2d Cir.1992) and citing Collins v. Scully, 755 F.2d 16,
-31-
19 (2d Cir.1985) (evidence must be “crucial, critical, highly
significant”)).
This standard is not met here.
was
not
“sufficiently
material
The prior bad acts evidence
to
provide
the
basis
for
[petitioner’s] conviction” nor did the prior bad acts evidence
“remove a reasonable doubt that would have existed . . . without
it.” Dunnigan, 137 F.3d at 125 (quotations and citations omitted).
Petitioner maintains that in the face of the otherwise “weak” trial
evidence, the Burch/Hill testimony unfairly led the jury to accept
Green’s testimony that Petitioner paid Winebrenner $5000 to kill
Tabatha. See Pet’r Mem. of Law 61-62.
Petitioner argues that this
is evidenced by the fact that “the jury asked to have all of the
Hill/Burch direct testimony (not the cross) read back to them, just
before they returned a guilty verdict.”
Id. at 50.
The Court
rejects this contention since it is speculative and because the
record before this Court reflects that the jury did indeed have
substantial evidence to consider –- beyond the prior bad acts
evidence –- to find Petitioner guilty of first degree murder.
The
evidence at trial established that Petitioner was aware that his
wife was having an affair and had documented evidence of it by
hiring a private investigator to follow her. Further, Petitioner’s
own statements to police, as well as testimony from Green and
Hoskins, established that Petitioner was angry about his wife’s
affair.
Additionally,
Green
testified
-32-
about
the
agreement
Petitioner had made with her and Winebrenner to kill Tabatha, and
that testimony was corroborated by Hoskins, who testified that
Petitioner gave Winebrenner documents and photographs of Tabatha
and Cromwell together, while stating that they were the items that
Winebrenner had requested.
Green also testified that on the night
of the murder, after she and Winebrenner went to Petitioner’s house
and discovered all the doors locked, she called Petitioner from a
phone booth and Petitioner subsequently unlocked the garage doors
so that Winebrenner could get into the house to access Tabatha.
Green’s testimony in this respect was corroborated by Woods, who
testified that, on the night of the murder, she saw a car that
looked like Green’s pull into Petitioner’s driveway, leave five
minutes
later,
and
then
return
about
thirty
minutes
later.
Telephone records corroborated Green’s testimony about her call to
Petitioner from the phone booth just minutes before the murder.
Green’s account of events was corroborated by testimony from police
that there were no signs of forcible entry at the Bryant home and
that the garage doors leading into the house were open.
Green’s
testimony about Winebrenner’s efforts to discard his clothing and
the rifle was corroborated by the recovery of those items from the
locations she had described.
this
Court
to
conclude
Accordingly, there is no basis for
that
the
jury
would
have
acquitted
Petitioner if it had not learned that he had previously attempted
to have his wife murdered.
See e.g., Tingling v. Donelli, No. 07
-33-
Civ. 1833(RMB)(DF), 2008 U.S. Dist. LEXIS 113553, 2008 WL 4724567,
at *9 (S.D.N.Y. Oct. 24, 2008) (“Moreover, in light of the other
strong evidence of Petitioner's guilt . . . Petitioner has not
shown that the admitted evidence removed a reasonable doubt that
otherwise would have existed.”);
Clanton v. Rivera, No. 06 Civ.
4756 (DAB) (AJP), 2008 U.S. Dist. LEXIS 57900, 2008 WL 2839712, at
*21 (S.D.N.Y. July 22, 2008) (stating that, even if state court
erred in admitting evidence of prior bad act, “any such error did
not deprive [petitioner] of a fundamentally fair trial, given the
strong evidence against him” (collecting cases)).
Additionally,
the trial court’s limiting instruction is further evidence that the
state court did not deny petitioner a fundamentally fair trial.
See, e.g., Clanton, 2008 U.S. Dist. LEXIS 57900, 2008 WL 2839712,
at *22 (stating that “[l]imiting instructions have been found to
militate against a finding of constitutional error” and collecting
cases).
In any event, the Supreme Court has yet to establish clearly
when
the
admission
of
prior
uncharged
crimes
under
state
evidentiary laws can constitute a federal due process violation.
See Parker v. Woughter, No. 09 Civ. 3843 (GEL), 2009 U.S. Dist.
LEXIS 52419, *4-5 (S.D.N.Y. June 9, 2009) (“[P]etitioner cites no
Supreme Court case, and the Court is aware of none, holding that
the admission of evidence of uncharged crimes violates the Due
Process Clause of the Fourteenth Amendment.”). It follows that the
-34-
trial court’s decision to admit the prior bad acts evidence subject
to final limiting instructions cannot be said to be “contrary to”
or an “unreasonable application of” clearly-established federal law
for purposes of the AEDPA.
In sum, Petitioner’s claim is meritless and provides no basis
for habeas relief.
Accordingly, the claim is denied in its
entirety.
V.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied,
and the petition is dismissed.
Because Petitioner has failed to
make “a substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability.
See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
The Court also
hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.
Coppedge v.
United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
-35-
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
October 23, 2012
Rochester, New York
-36-
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