In setting out the standard for plain error review of jury instructions, the court in United States v. Chandler, 996 F.2d 1073, 1085, 1097 (11th Cir.1993), cited Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. Spencer attended Chattanooga Central High School and was a. In determining whether an instruction was supported by the evidence the question is not whether the Supreme Court or Court of Criminal Appeals believes the evidence, but simply whether such evidence was presented. Id. Show me the papers. (R. (R. However, this evidence alone does not constitute evidence indicating that Spencer was intoxicated at the time of the shootings. He stated that he was stunned, and that he radioed a shots fired call over the police radio, and ran to the back of his police car. [Defense counsel]: New Hill. Bucky McMillan, while serving on active-duty status as a judge of this court under the provisions of 12-18-10(e), Ala.Code 1975. Cook v. State, 46 Ala.App. 408, 409, 73 So. Terry Spencer Obituary, Death - Visitation & Funeral Plans - Death-Obituary.com Terry Spencer Obituary, Death - Terry Spencer, a teacher at Sto-Rox Upper Elementary School has passed away, the full obituary is currently unavailable. [T]he weight to attach to [a] known mitigating circumstance is within the discretion of the trial court. My prayers go out to you and your family in your time of bereavement. denied, 200 Ala. 23, 75 So. Here, the trial court considered the jury's recommendation as a mitigating circumstance and assigned it moderate weight. He has a legal right to invoke the Fifth Amendment if his lawyer advises him to do that. However, the court should charge on voluntary intoxication only when there is a sufficient evidentiary foundation in the record for a jury to entertain a reasonable doubt as to the element of intent. In CC-04-4383 the count was seven (7) for life without parole and five (5) for death. 2. Thats when it hit me I should be dead, he said in 2005. According to Washington, he saw the officers pull up and approach the apartment, but he denied speaking to them, saying that he stayed quiet because there was a warrant for his arrest. It has been years since I've seen you, but I knew you were always around, and to the family, may God bless you and keep you in your time of need. The uncontroverted evidence further indicated that Spencer fired a final shot point-blank into Officer Bennett's head, as Officer Bennett lay on the ground outside the apartment. denied, 252 Ala. 60, 39 So.2d 421 (1949), and where the evidence of intoxication is offered by the State, see Owen v. State, 611 So.2d at 1127-28.'. The trial court also placed great weight on the aggravating circumstance contained in 13A-5-49(7), Ala.Code 1975, that the capital offense was committed to disrupt or hinder the lawful exercise of a government function. I was so hurt to learn of Kerry's passing. Spencer further stated that sometime shortly after 9:00 a.m. on the morning of the shootings, he took a Seroquel tablet and drank a beer to help him go to sleep. Pilley v. State, 930 So.2d 550, 561-62 (Ala.Crim.App.2005). Officer Hugh Butler was the first to go to Collins. My deepest sympathy goes out to you and your family. She was described as a real doll. 913.) Because there was no rational basis for an instruction on voluntary intoxication, we find no plain error in the trial court's failure to instruct the jury on voluntary intoxication or reckless manslaughter as a lesser-included offense. The trial court denied Ervin's motion for a mistrial and instead ordered the clerk to prepare instanter subpoenas for the trial court to issue to attempt to secure the missing defense witnesses. Required fields are marked *. In weighing the aggravating circumstances against the mitigating circumstances, the trial court accorded great weight to the aggravating circumstance of 13A-5-49(5), Ala.Code 1975, noting that the officers were acting as agents of the court in their attempt to duly serve warrants, and that two of the three officers were gunned down from behind without any opportunity to draw their weapons. The trial court filed an amended sentencing order with this court, and on February 27, 2009, we again remanded this cause to the trial court with instructions that it amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances and the judicial override of the jury's recommendation of life imprisonment without parole. Kerry Spencer had taught her kids to baby sign before they could speak so they could communicate while they were infants. It is not an honest, but a reasonable belief, that justifies. Kerry was a 2010. Tawuan Townes. 1669.) As this Court stated in Roberts v. State, 735 So.2d 1244 (Ala.Crim.App.1997), aff'd, 735 So.2d 1270 (Ala.1999): In capital cases, it is the duty of this court to independently determine whether the sentence of death is appropriate in a particular case. Echovita offers a solidarity program that gives back the funds generated to families. It would soon become the deadliest day in the departments history.Collins, then 37 and not yet a sergeant, had worked in the West Precinct for 10 years after leaving the Army, having served stints in Berlin and Operation Desert Storm. Ryan Kreidler (R) -- IF, OF The first nine on this list are pretty good bets. 1088.) [Defense counsel]: He's also kin to Nathaniel Woods. We are sad to announce that on October 7, 2021, at the age of 65, Kerry Donald Spencer (Fort Myers, Florida) passed away. A trial court's oral charge to the jury must be construed as a whole, and must be given a reasonable-not a strained-construction. The penalty phase of the trial was conducted before the jury. Specifically, Spencer contends that there is no evidence that the jury unanimously found that at least one aggravating factor was proven beyond a reasonable doubt. As to the trial court's findings concerning the nonstatutory mitigating circumstances, in his second amended sentencing order the trial court states that Spencer presented evidence indicating that he was sorry for these crimes and he apologized to the victims' families. Log in to a funeral home below and get started. 401, 406-07, 265 So.2d 185, 190, cert. According to Spencer, he looked out the window and saw Curly. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. He graduated from. Always - Sharetha LaJoyce Ivory*** PIG - I love you all. You can send your sympathy in the guestbook provided and share it with the family. Bush v. State, 168 Ala. 77, 53 So. Both this Court and the Alabama Supreme Court have repeatedly denied the very claims now raised by Spencer on appeal. What are you asking the Court to do? 1725-33.) On October 9, 2005, the trial court issued an amended sentencing order. He stated that he was pissed off with the officers' harassment and high on cocaine. Passed away Feb 2020. 1088-89.). Peraita v. State, 897 So.2d 1161, 1198 (Ala.Crim.App.2003). It was originally set for trial on April 11, the same day this was to be tried, this particular case to be tried. So he was going to do it because of the family. View Terry Spencer's obituary, contribute to their memorial, see their funeral service details, and more. He did, but it was to curse them and argue he wasnt a wanted man. I am so sorry to hear about your lost,you will be in my prayers. The court did not err in not instructing the jury on intoxication and manslaughter where there was no evidence that the appellant was intoxicated at the time the robbery-murder occurred. '. Spencer did not claim to be intoxicated at the time of the shootings. IF YOU ABIDE WITH GOD, HE WILL ABIDE WITH YOU. Spanish. Therefore, Spencer is not entitled to any relief on this claim. Perry was born on November 18, 1950, in Jamestown, NY, the son of the late Gordon and Florence Hollabaugh Spencer. According to Rector, a number of fragments recovered during the autopsies of Officers Bennett and Chisolm were fired from the SKS assault rifle; he stated that he conducted a distance study and concluded that the end of the barrel of the SKS assault rifle had been positioned from two to six inches from Officer Bennett's face when that shot was fired. She stated that she next saw the officers take Nate down inside the kitchen and that she got up and went into the bathroom. THE COURT: Don't you think he might need a lawyer if they indict him and he gets up and testifies in regard to his criminal activity involved in that apartment out there and these two defendants? That would be images I would have seen forever.. Both Nathaniel Woods and Kerry Spencer were arrested, convicted and sentenced to death. THE COURT: Sure. There was no reasonable theory to support an instruction on intoxication because there was no evidence of intoxication. Leave a sympathy message to the family on the memorial page of Kerry Donald Spencer to pay them a last tribute. We also use third-party cookies that help us analyze and understand how you use this website. I am greatful to have shared fond memories of high school with Kerry and Cammy. (Funeral arrangements entrusted to the Kerry Funeral Home, Wawa, 1-800-439-4937). In accordance with Rule 45A, Ala.R.App.P., we have searched the record, with respect to Spencer's capital-murder convictions, for any error that may have adversely affected Spencer's substantial rights and have found no plain error or defect in the guilt-phase proceedings of the trial. An accused is entitled to have the jury consider the issue of his intoxication where the evidence of intoxication is conflicting, Owen v. State, 611 So.2d 1126, 1128 (Ala.Crim.App.1992); Crosslin v. State, 446 So.2d 675, 682 (Ala.Crim.App.1983), where the defendant denies the commission of the crime, Coon v. State, 494 So.2d at 187; see Moran v. State, 34 Ala.App. Services will be held Tuesday May 31st, at 10:00, at Lutheran Church of Hope, 925 Jordan Creek. See also Guthrie v. State, 689 So.2d 935 (Ala.Crim.App.1996), aff'd, 689 So.2d 951 (Ala.1997). Authorize the publication of the original written obituary with the accompanying photo. Although [Spencer] offered an apology for his actions, it is in direct contradiction with the undisputed facts of the case nor his statement to police after his arrest, or his testimony before the jury in the penalty phase. Spencer testified that he sold drugs from the apartment where the shootings occurred. Clearly these instructions, tracking the language of 13A-3-27(a)(1) and 13A-3-28, Ala.Code 1975, were accurate reflections of the law. Further, the first two officers Spencer encountered during the final and fatal engagement were shot repeatedly in the back while attempting to exercise a lawful arrest on Woods. Thus, the limited mandates of Ring have been satisfied in this case, because by returning a guilty verdict in case no. . Born on January 22, 1928, in Wichita Falls, Texas, to A.A. (Bill) and Hester Ann (Bainey) (ne Roberts) Spencer, Jerry and his parents moved to Yazoo City, Mississippi, where he attended high school. He was 81 years old. Having reviewed the applicable legal authority, the arguments of the parties, and the record before this Court, we cannot say that reversible error occurred as to this claim. It is solely for the jury to determine whether any particular inference that may possibly be drawn from given facts is or is not a reasonable inference, and not for the court to substitute its judgment for theirs in passing upon the character of inferences afforded by the evidence. Domingus v. State, 94 Ala. 9, 13, 11 So. Here, the murders were committed years after the effective date of 13A-5-49(9). We have also reviewed the propriety of the sentence of death as required by 13A-5-53(a), Ala.Code 1975. For some people, the best send-off is one that they would have loved to attendthemselves: a big party. Kerry Spencer shared an old photo of her son. 266 (1910).. . What are you going to advise him to do?, [Assistant defense counsel]: We would object to the Court-. It is to be noted that reasonableness is determined by a standard-a reasonable person under like circumstances-and the determination is made by the jury. Perkins, at 1117. As with the two above-discussed portions of the amended sentencing order, what weight and credibility to assign the evidence rests with the trial court. The first thing I said to him was, It was only a misdemeanor. [I]t is a question for the jury to satisfy itself from all the evidence in the case whether or not the defendant was in imminent and manifest danger either of losing his own life or of suffering grievous bodily harm, or that it appeared so to the mind of a reasonable man. Dilburn v. State, 16 Ala.App. In Act No. And so instead of having a coordinated movement, like when I pick up this paper clip or whatever, you have just random contractions, seizures if you would. I cant say it as fast as I thought it, but I was like Hey dummy, youre standing in the open and somebodys shooting at you, he said. He was only 31 years old. 401 So.2d at 349, quoting Thomas v. State, 15 Ala.App. Kerry Jane Hooper (nee Spencer) Mar 1961 - Jan 2019. He drove there to help and encountered Nathaniel Woods for the first time. Thus, the trial court considered the evidence presented by Spencer but accorded it no weight. The court determines what the rules are, but it is for the jury to determine whether the standard has been met by the evidence in the particular case. R. Perkins & R. Boyce, Criminal Law 1116 (3d ed.1982). She stated that that morning one of the officer's took off his badge and tried to get Spencer to come outside, but that Spencer said the police could not get him outside in that manner. See 13A-5-53(a), Ala.Code 1975.1. Spencer stated that shortly after 10:00 a.m. that morning, he took a Seroquel tablet and drank a beer to help him sleep. Outside the hearing of the jury, defense counsel informed the trial court that the witness had not been subpoenaed because the witness had told defense counsel on three or four occasions he didn't need a subpoena. (R. Take comfort in knowing that now you have a special guardian angel to watch over you. Why would it be relevant? The State contends that the facts here are sufficiently different than those in McTerry and Ervin, and, therefore, that there is no error fatal to the convictions in the present case in not issuing an instanter subpoena to compel Cooper's presence at trial. Evidence technicians and a crime-scene investigator photographed and diagramed the scene and collected evidence in the area. (R. Dr. Simmons testified that stippling on Officer Chisolm's face indicated that at least one of the bullets had been fired from close range. AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING. Some basic help and starters when you have to write a tribute to someone you love. Doyle Norman Cox was born on May 7, 1938 in Boone, the son of Woodrow and Alice (Staley) Cox. 983, 984 (1918). The trial court thoroughly instructed the jury, among other things, on the elements of each charge and on the State's burden of proof. Scott v. State, 34 Ala.App. See also Ex parte Tomlin, 909 So.2d 283 (Ala.2003). Alabama Death Row Inmate List - U. Alabama Death Row Inmate List - V. Kim Vanpelt. It was a good thing. Echovita offers a solidarity program that gives back the funds generated to families. This court previously pretermitted a plain-error review of Spencer's sentencing proceeding, pending the trial court's return to our remand order. While on patrol, Collins heard Owen talking on the police radio about a complaint on 18th Street in Ensley. Mike Collins and fellow West Precinct officers Carlos Curly Owen, Harley Chisolm III and Charles Robert Bennett. Neil went home to be with his Lord and Saviour. 1719.) Although the trial court need not list and make findings as to each item of alleged nonstatutory mitigating evidence offered by a defendant, Reeves v. State, 807 So.2d 18, 48 (Ala.Crim.App.2000), it must make a clear finding regarding the existence or nonexistence of nonstatutory mitigating evidence offered by a defendant. It was-he pulled his gun up and I already had the weapon in my hand, so I opened fire. (R. Stating in his amended sentencing order on return to second remand that [i]f we are to have law and order in a civilized society, then officers like these, who were gunned down while trying to perform a government function or enforce the law must mean something. The trial court further noted that Spencer showed no remorse in his statement to the police following the murders or in his testimony; rather, the trial court felt that Spencer seemed to indicate that he was justified in killing these officers. A trial judge may properly refuse to charge the jury on self-defense where he determines that the defendant could not set up self-defense under the facts. Consford v. State, 15 Ala.App. Anthony Tyson. 418, 139 L.Ed.2d 320 (1997). Hodges v. State, 856 So.2d 875, 893 (Ala.Crim.App.2001), aff'd 856 So.2d 936 (Ala.2003). CC-04-4383, Spencer was convicted of intentionally causing the death of Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett by one act or pursuant to one scheme or course of conduct by shooting them with a firearm, a violation of 13A-5-40(a)(10), Ala.Code 1975. 42.). A unique and lasting tribute for a loved one. Dr. Gary Simmons testified at trial as follows: Defense counsel: If somebody received gunshot wound B to the chest would there be a short period of time afterward when myoclonic jerk could have been a factor?, Dr. Just inside the kitchen, Chisholm got Woods down on the floor as if he was about to handcuff him, and Woods yelled, I give up. 59 (1909). denied, 543 U.S. 924, 125 S.Ct. But she never expected one-year-old son, Samuel, to use his skill to send out an S.O.S while sitting on Santa's . When Collins looked again, he was gone. Every memory left on the online obituary will be automatically included in this book. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App. According to Officer Collins, Officer Owen and he went to the rear of the apartment and Officers Bennett and Chisolm went to the front of the apartment. Kerry Smith died this past Thursday, 29th of December 2022. See Pilley v. State, 930 So.2d 550, 562 (Ala.Crim.App.2005). May god give you strenghth. Instead, he ran out the back door to make his way to Bennett. Spencer also presented the testimony of his mother and his uncle concerning his good behavior as a child and that he was remorseful for the offenses. Spencer testified that Curly had attempted to force his way into the apartment through a window approximately eight months before the shootings, but that Nate had gotten his videocassette recorder and filmed the incident, startling Curly and causing him to jump back and leave. denied, 522 U.S. 969, 118 S.Ct. Draw freely from the well of peace and strength for the supply is unsurpassed even in times like these. Always stand on the solid rock, Jesus! Ingram v. State, 779 So.2d 1225 (Ala.Cr.App.1999). Johnson v. State, 820 So.2d 842, 874 (Ala.Crim.App.2000).. CC-04-4131, Spencer was convicted of intentionally causing the death of Charles R. Bennett by shooting him with a firearm while Bennett was on duty as a police officer, a violation of 13A-5-40(a)(5), Ala.Code 1975. (Arrangements entrusted to Kerry Funeral Home Ltd., Wawa, Ontario 705-856-7340). Officer Terrance Hardin testified that before entering the apartment, he secured the SKS assault rifle in a patrol car and then joined the other officers in entering the apartment. Dumas testified that he was awakened that morning by a bang on the front door. At the close of the defense's case, the defense renewed its motion for a mistrial on the grounds that two witnesses, both of whom were eyewitnesses to the shootings and further provided corroborating evidence supporting Ervin's claim that the shootings were in self-defense, were absent. Officer Chisolm's service weapon was discovered near his body and his can of Mace was discovered on the floor near the wall of the kitchen. This beautiful baby boy was named Kerry Darnell Williams, the second oldest of six children. Jerry Alexander Spencer of Olive Branch, Mississippi, passed away on Friday, October 15, 2021, at the age of 93. Jerry Wayne Spencer "JW" was born May 29, 1947 in Shafter, California and passed away January 26, 2023 in Parker, Arizona. Officer Collins stated that he heard Woods yell, I give up. Collins went to the hospital to be checked out. Copyright 2023 Echovita Inc. All rights reserved. He said he was stunned and that he radioed a shots fired call and considered his options. It is our prayer that He will hold, protect, bless and keep you'll through these difficult times. For the reasons expressed here, in our February 27, 2009, opinion, and in our April 4, 2008 opinion, we affirm Spencer's convictions and sentences. According to Spencer, sometime between 6:00 a.m. and 8:00 a.m. on the morning of the shootings, he was awakened by someone kicking on the front door; he stated that the sound was different than when customers knocked on the door and that their business was always conducted at the back door, so he immediately knew it was not related to his drug business. Just look to God and he will see you through your time of sorrow. Markesha Williams testified that she had been at the apartment the night before the shootings and both times the officers came to the apartment on the day of the shootings. The foregoing opinion was prepared by Retired Appellate Judge H.W. On September 9, 2005, the trial court held the final sentencing hearing. Learn more about FindLaws newsletters, including our terms of use and privacy policy. Dearly loved husband of Marjorie, loved father, father-in-law and great It wasnt like I had time to say, Oh, you fixing to shoot me. 670 (1898) (No convenience of the court, nor any condition of the docket of the cases for trial, can authorize the denial of [the right of the accused to compulsory process], guaranteed to him by the constitution of the State.). He stated that he could have easily killed Officer Collins but did not perceive that officer to be a threat, so he instead allowed him to take cover behind his vehicle and then fired the shots in his direction to facilitate his escape. Because the trial court has complied with the requirements of our remand concerning its sentencing order, Spencer's sentencing will now be reviewed pursuant to Rule 45A, Ala. R.App. Here, based on the evidence supporting Spencer's theory of events, the events leading up to the shootings, even if creating a sense of passion or mental or emotional imbalance, did not constitute a legally recognized provocation. Necessary cookies are absolutely essential for the website to function properly. Spencer testified that he told Nate they could not sell any drugs that day because of the increased scrutiny from the officers. The trial court has also clarified in this return to second remand its findings and consideration concerning evidence indicating that Spencer shot Officer Bennett a second time through the head only as a reaction to Officer Bennett's having allegedly touched Spencer's leg. Officer Hugh Butler testified that he arrived at the scene and saw another officer in position at the front door of the apartment, so he approached the door as well; according to Officer Butler, as he walked toward the front door, he saw Officer Bennett lying on the ground, stating, I looked down and saw his eyes wide open, his pupils were blown and he had a hole in his face with a little bit of smoke coming out of it. (R. It must be shown that substantially favorable testimony would be given by the witness and that the denial of a continuance would materially prejudice the defendant. This Court stated: A corollary to the accused's right to compulsory process is the court's obligation to ensure that that right is not violated for procedurally pretextual reasons. OB6 Obituaries, Notices. View online obituaries, write messages of remembrance, light virtual candles and more . Additionally, Rule 17.5, Ala.R.Crim.P., provides that [a]ny witness who, after being subpoenaed, fails to appear at the time and the place as required by the subpoena, or who fails to remain until released, may be attached by order of the court. In Weaver v. State, 401 So.2d 344 (Ala.Crim.App.1981), this Court stated: Before it can be said that the accused has been denied this constitutional right, he must apply to the court for the issuance of an attachment and show to the court that the witness has been served with a subpoena a sufficient length of time before the trial to afford an opportunity to the witness to obey its mandate, that the witness is within the jurisdiction of the court, and that his attendance can be obtained within a reasonable time by the compulsory process, that such witness is absent without the procurement or consent of the accused, and that the testimony of the witness is material . They are irritated. Officer Fred Alexander arrived in the front of the apartment and radioed that there was an officer down in the front of the apartment and then made an additional radio transmission, indicating that two more officers were down inside the apartment. (R. It is always difficult saying goodbye to someone we love and cherish. Terry "Cot" Spencer, 65, of Carlisle, SC passed away on Wednesday morning, July 27, 2022 in Ellen Sagar Nursing Home. Even assuming, without finding as true, Spencer's contentions that the officers made remarks during the earlier encounter that caused Spencer to fear that the officers would hurt or kill him, those comments were made hours before the final encounter where the officers were killed. Published by Dallas Morning News on Aug. 10, 2006. While it is not required that where a person is menaced he must wait until a weapon is presented ready for deadly execution, yet the danger must be real or so manifestly apparent as to create a reasonable belief of presently impending peril to life or limb. Therefore, Spencer's claim is without merit. In his amended sentencing order on return to our first remand, the trial court found that this mitigating circumstance was not present; it determined that Spencer presented no evidence to support this mitigating circumstance. Woods' alleged accomplice, Kerry Spencer, confessed to being the sole gunman who killed the officers with a high-powered weapon, but separate juries convicted him and Woods of four capital murder charges, including killing the officers in the course of committing another crime. The trial court's amended sentencing order shall be submitted to this Court within 42 days of the date of this opinion. Of December 2022 and keep you 'll through these difficult times III Charles. ) Cox use this website order shall be submitted to this court and the Alabama Supreme court have repeatedly the. An honest, but a reasonable belief, that justifies foregoing opinion prepared! Funeral home Ltd., Wawa, 1-800-439-4937 ) to Kerry Funeral home, Wawa, Ontario ). 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On Aug. 10, 2006 Fifth Amendment if his lawyer advises him to do?, [ Defense. Said to him was, it was only a misdemeanor family on the online obituary be... Weapon in my prayers before the jury go out to you and your family hospital! Staley ) Cox photographed and diagramed the scene and collected evidence in the guestbook provided and share with... # x27 ; s obituary, contribute to their memorial, see their Funeral details! His Lord and Saviour 856 So.2d 875, 893 ( Ala.Crim.App.2001 ), aff 'd, So.2d... Sold drugs from the well of peace and strength for the first to go to Collins, write of... Down inside the kitchen and that he was going to do it because of shootings! Ala.Crim.App.2001 ), Ala.Code 1975 a big party Tomlin, 909 So.2d 283 ( Ala.2003 ) evidence that. Use third-party cookies that help us analyze and understand how you use this website for! Spencer, he ran out the back door to make his way Bennett! Law 1116 ( 3d ed.1982 ), 94 Ala. 9, 13, 11 so Robert Bennett bang., October 15, 2021, at Lutheran Church of Hope, Jordan! Considered the evidence presented by Spencer but accorded it no weight, to! Before the jury be with his Lord and Saviour R. take comfort in knowing that now you a! This case, because by returning a guilty verdict in case no home,... That she next saw the officers ' harassment and high on cocaine obituary, contribute to their,... Perkins & R. Boyce, Criminal Law 1116 ( 3d ed.1982 ) after the effective date of 13A-5-49 9! Website to function properly she got up and I already had the weapon in my hand, so I fire. The first thing I said to him was, it was to them...
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