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Hollis v. State

Court of Criminal Appeals of Tennessee, Nashville

February 14, 2017

HORACE E. HOLLIS, JR.
v.
STATE OF TENNESSEE

          Session Date: March 10, 2015

         Appeal from the Circuit Court for Dickson County No. 2012-CR-846 Robert E. Burch, Judge

         This appeal of the denial of post-conviction relief is before this court pursuant to remand by the Tennessee Supreme Court, which vacated this court's August 2015 opinion upholding the post-conviction court's denial of post-conviction relief because the transcript of the post-conviction hearing was not included in the appellate record.[1] In August 2001, the Petitioner, Horace E. Hollis, Jr., was charged in an eighty (80) count presentment with forty counts of aggravated sexual battery and forty counts of rape of a child. The sexual abuse was committed against the Petitioner's two minor granddaughters by marriage and, based on the presentment, occurred every other weekend from October 2000 to July 2001. The counts in the presentment were identical except for the victim's name and date range. Before trial, the Petitioner's third appointed counsel agreed to sever the counts of the indictment into separate groups of four, one count of rape of a child and one count of aggravated sexual battery for each of the two victims, theoretically resulting in twenty separate trials.[2] The Petitioner was acquitted at his first trial. At his second trial, the Petitioner was convicted of rape of a child and aggravated sexual battery of each victim, for which he received an effective sentence of forty (40) years' incarceration. Following his second trial, the remaining counts of the presentment were dismissed by the State. Although the Petitioner presents a multitude of issues for our review, we consider his primary issue to be whether third counsel was ineffective in failing to require an election of offenses in his first trial, which resulted in an acquittal. Because there was no election of offenses in his first trial, the Petitioner further contends that third counsel was ineffective in failing to object to his second trial based on double jeopardy principles. Following a thorough review of the record and applicable authority, we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

          Andrew Love, Tennessee, for the Petitioner, Horace E. Hollis, Jr.

          Robert E. Cooper, Jr., Attorney General and Reporter; Andrew Craig Coulam, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Ray Crouch, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the Court, in which James Curwood Witt, Jr., J. joined. Roger A. Page, J. not participating.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         A thorough review of the testimony at each of the Petitioner's trials is necessary for the disposition of this case. As an initial matter, prior to trial, third counsel agreed to re-label the numeric counts in the eighty (80) count presentment with letters of the alphabet such that it read Counts A, B, C, and D, rather than Counts 1, 2, 3, 4. At his first trial on August 24, 2010, the Petitioner was tried on Counts 77, 78, 79, and 80. The trial court preliminarily instructed the jury that in Count A of the indictment, the Petitioner was charged with aggravated sexual battery of granddaughter A between the dates of June 30, 2001, and July 1, 2001.[3] In Count B, the trial court instructed the jury that the Petitioner was charged with rape of a child of the same victim between the same dates. In Count C, the trial court broadened the date range and instructed the jury that the Petitioner was charged with aggravated sexual battery of granddaughter B between June 30, 2001, and July 2, 2001. In Count D, the trial court advised that the Petitioner was charged with rape of a child of the same victim for the same dates.

         During its opening statement in the first trial, the State argued that it intended to prove that on June 30 and July 1, 2001, the Petitioner committed aggravated sexual battery and rape of a child against both granddaughters, who were five and four years old at the time of the offense. The State continued to explain that the victims would "come to Charlotte every weekend and stay at their grandmother's house, [victims' grandmother's name and her address]. [The victims] would come out on the weekends and during the week they lived home with their mother in Nashville." Detective Billy Joe Gafford was assigned to investigate the instant case based on a referral from Child Protective Services (CPS). He testified that on August 2, 2001, CPS had received a disclosure of "some type of abuse" by the Petitioner's granddaughters, and five days later, on August 7, the victims participated in recorded interviews conducted by CPS. Three days later, on August 10, 2001, Detective Gafford obtained a warrant for the Petitioner's arrest. On August 13, 2001, when Detective Gafford went to the Petitioner's home, a room he rented in the basement of the home of his ex-wife and the victims' grandmother, the Petitioner was not there. Sometime later, after the Petitioner's lease had expired, the victims' grandmother gave Detective Gafford permission to search his basement room. During the search, Detective Gafford found children's toys and video games and a rental car agreement. After consulting with Kim Menke, the Assistant District Attorney (ADA) assigned to the case, Detective Gafford obtained "indictments" against the Petitioner and contacted other law enforcement agencies to assist him in searching for the Petitioner's whereabouts.

         At the time the warrants were issued, the Petitioner worked for a Nashville trucking company. Detective Gafford later received information that the Petitioner was working for a carnival and eventually located the Petitioner in Temple, Texas. The Petitioner had been arrested, and Detective Gafford traveled to Texas to testify regarding the Petitioner's outstanding Tennessee arrest warrants. At some point not borne out at trial, the Petitioner was returned to Tennessee. In November 2009, the Petitioner was furloughed to the Veterans Affairs (VA) hospital in Nashville for medical reasons.

         On cross-examination, Detective Gafford acknowledged that the Petitioner was not aware of any pending investigation at the time he left, when the warrants were issued. Detective Gafford also never personally interviewed the victims. Detective Gafford acknowledged that he was first notified of the offense on August 2 but that his affidavit of complaint showed that he had been contacted on July 31. A bench conference then occurred during which the prosecutor advised the court that if defense counsel continued this line of questioning, then Detective Gafford "could end up testifying to some dates that would show other counts of the indictment." Defense counsel replied, "that date is not even in the indictment . . . this is well after the indictment." The prosecutor then replied, "Well, I don't know what all she is going to ask and that's fine, but I just wanted to again take the chance to warn Detective Gafford that we're in this gray area here because he only got two arrest warrants and there ended up being an 80 count indictment[.]" After being cautioned by the trial court, defense counsel continued questioning Detective Gafford, who agreed that his affidavit was dated on the same day that the allegation occurred. Detective Gafford clarified that he was contacted or notified of the offense on August 2, and that the listed date on the affidavit was a clerical error. His affidavit was admitted into evidence. He agreed that the facts as contained in his affidavit regarding the victims' statements of sexual abuse were consistent with their recorded statements given to CPS. He agreed that the victims did not provide dates for the offenses.

         The victims' grandmother, who was also the Petitioner's ex-wife, testified that the Petitioner, nicknamed "Buddy, " lived in the basement of her home to help defer the house payment. She said that the victims were her granddaughters and, at the time of trial, were fourteen and fifteen years old. In June and July of 2001, the victims lived in Nashville with their mother but tried to visit her every weekend. She would pick them up from Nashville every weekend except for when she had to work. Asked if she picked them up or if they visited her on June 30 or July 1, 2001, she replied, "I did not." She explained that she did not pick them up on the dates alleged in the presentment because she had to work. She said, "They came up there. It had to be on a Sunday and they wouldn't have stayed very long because my daughter's boyfriend would have brought them up there." Her home had three floors: an upstairs, middle floor, and downstairs. The victims had their own bedroom on the middle floor at their grandmother's home. Asked who watched the victims when she was at work, the grandmother said her current husband. Although the Petitioner was "around" the victims upstairs, he was not permitted to "watch after" the victims.

         On the day the victims disclosed the sexual abuse, the grandmother was notified of the sexual abuse by a phone call from her daughter. When she received the phone call, the Petitioner was in the room and overheard the conversation. Five minutes after the phone call, the Petitioner left the grandmother's home and never returned. The grandmother did not enter the Petitioner's room until the police arrived. She did not know that the girls had gone into the Petitioner's room to watch movies. She later received a phone call from the Petitioner and urged him to turn himself in to the police but he said, "no." She recalled that at the time of the offense, the Petitioner was working for a trucking company. She said that he was driving a truck and would "come in for about two or three days a month and that's the reason why we let him stay there because we wouldn't see him very much." She confirmed on cross-examination that the victims were not with her on the weekend of June 30. She also said that although the victims were not allowed to be alone with the Petitioner, the victims "went [to his basement apartment], and you know, spent the night with him." When pressed to recall whether the Petitioner was present on the weekend of June 30, the grandmother replied, "I'm trying to think. I can't put a day on it but I just know he comes in . . . three days [] a month and that was it."

         Victim A was fifteen years old and lived with her grandmother at the time of trial. In 2001, when she was five or six years old, she lived in Nashville with her mother but visited her grandmother in Dickson every weekend. Victim A said her grandmother would pick her up from Nashville, or they would meet her grandmother at her office in Nashville. She said she visited her grandmother every weekend for "about a year or two." In 2001, she shared a bedroom on the second floor of her grandmother's home with her sister, Victim B, who was fourteen years old at the time of trial. She confirmed that the Petitioner lived in the basement during that time. In regards to the offense, Victim A said that the Petitioner "would touch us . . . he would put his hands down my pants and he would put his - he would make us - he would always put his finger inside of [her vagina] and I can't remember that much." She said that the offense occurred at her grandmother's home in the Petitioner's room. She said that he would offer candy and toys to her sister and her if they came to his room. Asked if there was ever a time when you and your sister were both in the same room with the Petitioner, Victim A replied, "Yes." The Petitioner showed the victims his penis. Victim A further testified that the Petitioner told her that "if we told anyone that he would kill the people that we told."

         On cross-examination, Victim A was asked if she remembered any dates of the offenses. She replied, "I can't remember the exact year but I remember the date. It was July 5." She said the Petitioner would always put his finger inside of her vagina at night while her grandmother was asleep upstairs. She first disclosed the abuse to her paternal grandmother.

         Victim B testified that she was fourteen years old and lived with her mother in Antioch at the time of trial. Victim B could not recall the Petitioner's name, but knew that someone lived in her grandmother's basement in 2001. She could not remember anything about the Petitioner and did not recall making a disclosure of sexual abuse. She said she was currently undergoing counseling "because of what happened." She testified that her therapists "help her block it out." When pressed about her interaction with the person who lived downstairs, the victim said that "he just asked me and my sister did we want to stay downstairs." She remembered following her sister downstairs, staying in his room, and him telling her that "if we ever told anybody he would kill whoever we told." Victim B said that it "hurt her head" when she tried to remember and that the therapists were helping her to block it out so she would not have nightmares.

         At the request of the State in December 2009, Captain Jim Webb of the Dickson County Sheriff's Department was searching for the Petitioner. Captain Webb located the Petitioner at the Salvation Army Rescue Mission in Nashville. Captain Webb explained that the Petitioner had been dropped off at the VA hospital by an Assistant Public Defender (APD), but never checked in. The hospital "would not divulge any records of [the Petitioner] ever being there" to Captain Webb. The Petitioner was at large for "a few days short of a month." Following the close of the State's proof, an affidavit from an APD was admitted into evidence by stipulation. The affidavit concerned the Petitioner's visit to the VA in December 2009, and his failure to return to the Dickson County jail. The affidavit stated that the APD transported the Petitioner, who was confined to a wheelchair, to the VA by order of the court. The APD opined that the Petitioner was unable to stand or walk without assistance. The Petitioner was provided with a copy of the trial court's order requiring him to return to the jail if he was not admitted to the hospital and the phone number to the Public Defender's Office in Ashland City. After waiting some time for the hospital administration to locate the Petitioner's records, the APD was advised that it would take another two to two and a half hours before a physician could see the Petitioner and complete the admission process. The APD was unable to wait for the Petitioner to be seen and left the Petitioner at the hospital. Significantly, the APD did not return to his office until some days later. Upon his return, he listened to an urgent message from the Petitioner advising that he was still at the hospital, he had seen a physician, and that the hospital refused to admit him. The Petitioner did not know what to do and did not have the means to return to the jail. The Petitioner requested the APD to come and pick him up from the hospital. After receiving the message, the APD called the hospital but was unable to obtain any information about the Petitioner. The victims' medical records from Our Kids Center were also admitted into evidence by stipulation and published to the jury.

         During the state's closing argument, the prosecutor briefly urged the jury to read the contents of the exhibits, the affidavit of complaint, the victims' statements, and the victims' medical records. Their argument otherwise focused on the Petitioner's flight from custody, which they argued was indicative of his guilt. The State's argument did not specifically reference the testimony upon which they were relying to support convicting the Petitioner. In response, the defense's closing argument focused on the fact that the Petitioner was not charged with flight or escape, that the Petitioner did not know any investigation was pending at the time he left in 2001; and that the affidavit from the APD showed that he tried to call back the APD because he did not have a ride back to the jail. Defense counsel also argued that the grandmother testified that the victims were not at her home on the dates alleged in the presentment. She claimed that the victims were there on one day and only for a couple of hours. Finally, defense counsel argued that the victims' medical records did not show any injury and reflected a normal exam result.

         Based on the above proof, the jury acquitted the Petitioner on all four counts of the presentment.

         A full recitation of the testimony presented at the Petitioner's second trial, which occurred on February 4, 2011, is detailed in this court's opinion on direct appeal. See State v. Horace Hollis, No. M2011-01463-CCA-R3-CD, 2012 WL 1867277, * 1-3 (Tenn. Crim. App. May 22, 2012). In the second trial, the State proceeded on Counts 73, 74, 75, and 76, which alleged that on June 16, 2001, and June 17, 2001, the Petitioner committed the same sexual offenses as outlined above against his granddaughters. Except for the testimony of Sue Ross, Veronica Gomez, the victims' mother, and an agent from the Tennessee Bureau of Investigation (TBI), the proof at the second trial was substantially the same as the first trial. We recount only the facts, as stated in our direct appeal, that are pertinent to the issues raised in the petition for post-conviction relief.

Former Department of Children's Services ("DCS") case worker Veronica Gomez testified that she received a referral on August 1, 2001, and she arranged for the victims to be interviewed and examined at Our Kids Center. Ms. Gomez interviewed the girls herself on August 7, 2001. She said that during that interview, [Victim A] "disclosed actual sexual penetration . . . by the penis . . . [i]nto the vaginal area, " while [Victim B] "only disclosed digital penetration." [Victim A] told Ms. Gomez that the [Petitioner] put his penis "into her monkey all the way and it hurt." The girls indicated to Ms. Gomez that they were afraid of what their mother might say about the abuse.
Sue Ross, a pediatric nurse practitioner employed at Our Kids Center testified that she performed a physical examination of the victims on August 10, 2001. During the examination, [Victim A], who was six years old, disclosed that she had been sexually abused by the [Petitioner], whom she called "Papa Buddy." [Victim A] told Ms. Ross that the [Petitioner] had penetrated her vagina with his fingers and penis and that he had forced her to touch his penis. Ms. Ross characterized [Victim A's] genital examination as normal. [Victim B], who was five years old at the time of the examination, reported to Ms. Ross that "Papa Buddy" "put his finger inside of her" and that he "put his private part on her belly button and said it felt like he was putting warm stuff on her tummy." According to Ms. Ross, [Victim B] said that the [Petitioner] penetrated her vagina with his penis. A genital examination of [Victim B] was normal.
The victims' grandmother and [the Petitioner's] ex-wife, [], testified that after their divorce, [the Petitioner] began renting a room in her basement in October 2000. [The victims' grandmother] and her third husband lived upstairs. [The victims' grandmother] said that the victims spent every other weekend with her at her residence and that [the Petitioner], who was an over-the-road truck driver, arranged his schedule so that he could "be there when they [were] there every other weekend." [The victims' grandmother] recalled that the girls often went into [the Petitioner's] living quarters and that she "thought they [were] down there watching movies 'cause he was always renting movies.'" She said that the victims had toys and books in the [Petitioner's] living area and that the [Petitioner] brought the children presents. [The victims' grandmother] recalled specifically that the victims were staying at her house on June 16 and 17, 2001, because that weekend was near [Victim A's] birthday and the family gave her a party.
. . . .
During cross-examination, [the victims' grandmother] said that she occasionally allowed the victims to spend the night with the [Petitioner] in his room and that the girls never acted strangely after doing so. [The victims' grandmother] acknowledged that neither victim ever refused to visit her on the weekends or complained of genital pain or showed any other signs, such as bloody underwear, that they might be being sexually abused.
The victims' mother, [], testified that on August 1, 2001, [Victim A] told her that the [Petitioner] had "touched her." [The victims' mother] said that she "had a nervous breakdown" as a result of the disclosure, and then she telephoned police and her mother.
During cross examination, [the victims' mother] maintained that the girls were not supposed to be around [the Petitioner] because she "knew something was going on but . . . couldn't put [her] finger on it." She said that she allowed the girls to be around the [Petitioner] so long as she was with them.
[Victim A], who was 15 years old at the time of trial, testified that the [Petitioner] "would put his hand down [her] pants and put his fingers . . . inside" her vagina. She said that she thought that the [Petitioner] did this "several" times in his basement room, but she could only remember "like maybe two times." She said that it hurt when he did it. [Victim A] testified that the [Petitioner] told her that if she told anyone about the abuse, he would "kill everybody."
[Victim B], who was four years old at the time of the abuse, testified that she did not "really remember anything" but that the [Petitioner's] name "really upsets [her]." She had no memory at all of any abuse. She said that she had been going to counseling and "trying to bring up the memories" but that she did not "have any memories at all."

         Based on the above proof, the jury convicted the Petitioner of two counts of rape of a child and two counts of aggravated sexual battery, for which he received an effective sentence of forty years' imprisonment. The Petitioner appealed his convictions to this court challenging only the sufficiency of the convicting evidence. His convictions were affirmed by this court; however, we remanded for entry of corrected judgments. See Horace Hollis, 2012 WL 1867277, at *1-4. The Petitioner did not seek further direct review of his convictions from the Tennessee Supreme Court. On December 10, 2012, the Petitioner filed a timely pro se petition for post-conviction relief alleging numerous claims of ineffective assistance of counsel as well as other grounds for relief. Following the appointment of counsel, the Petitioner filed an amended post-conviction petition.

         At the April 23, 2013 post-conviction hearing, first counsel, the Public Defender for the Twenty-Third Judicial District, testified that he and two other attorneys from his office were originally appointed to represent the Petitioner. First counsel personally interviewed the Petitioner and discussed the length of time the Petitioner had spent in custody in Texas. At that point, the Petitioner "wanted to go ahead and face the [instant] charges" and advised first counsel to seek and obtain the Petitioner's work records in order to pursue an alibi defense. The work records purportedly showed that "during many of the periods [the Petitioner] was indicted or under presentment, " the Petitioner was "out on the road and not even [in Dickson County]." First counsel contacted the Petitioner's employer but was unable to obtain the work records because they were "disposed of" during the period of time that the Petitioner was in federal prison and before he was brought back to Tennessee. Although first counsel could not recall whether anyone in his office actually filed a motion for speedy trial, he researched the issue, discussed it with the Petitioner, and intended to pursue it.

         First counsel believed the inability to obtain the Petitioner's work records was "a severe detriment to [the Petitioner's] defense" primarily because witness memories had faded with the passage of time. First counsel generally discussed the difference between questioning a child witness and a teenage witness, and the impact a delay in prosecution would have on both. On cross-examination, first counsel confirmed that the Petitioner was charged by affidavit of complaint with two counts of aggravated sexual battery and two counts of rape of a child on or about July 31, 2001, and that the warrant was sworn out on August 10, 2001. He did not have personal knowledge of the Petitioner's flight from Tennessee but had reviewed similar information in his file. Specifically, he reviewed an August 17, 2001, TBI report contained in pre-trial discovery showing that the TBI had contacted the Petitioner's employer to obtain his work records, but first counsel could not confirm the substance of the report. He agreed that if the Petitioner's employer was unable to provide the Petitioner's work records to the TBI in 2001, his employer would not have been able to provide the work records to the defense when they were later appointed in 2009. First counsel confirmed that "as [the Petitioner travel[ed] around, " he worked under various "alias names, " but first counsel did not know the specific names or how many different names the Petitioner used.

         On March 8, 2010, first counsel's office was removed from the Petitioner's case based on a conflict. First counsel explained the circumstances in which his office withdrew from representing the Petitioner. In 2009, when the Petitioner was brought back to Tennessee, the defense entered an agreement with the District Attorney's Office to send the Petitioner to the VA hospital. On November 5, 2009, an escape warrant was issued for the Petitioner because he left the VA hospital and did not return to the Dickson County jail as required. According to first counsel, the Petitioner called his office and advised that he was not able to be admitted to the hospital, and they were unable to locate him after that.

         Although she could not recall the specific dates, second counsel also worked on the Petitioner's case and left the Public Defender's Office while the Petitioner's case was "still pending." She met with the Petitioner, began gathering records, and prepared his case for trial. She acknowledged that he was facing an eighty count presentment for offenses which occurred in the "early 2000's" and that there was "quite a bit of time between his indictment and when he came back [] to Tennessee to stand trial." Second counsel talked with the Petitioner about the speedy trial issue and whether his extradition from Texas was done properly. The Petitioner told second counsel that he had waived extradition to Tennessee "in the early 2000's." However, counsel explained that the Petitioner was also facing federal charges in Texas at the time that he waived extradition. She said ADA Kim Menke was handling the Petitioner's case at that time. Second counsel never worked with ADA Menke because he had passed away by the time she became involved in the Petitioner's case. She did not file any motions on the Petitioner's behalf.

         Third counsel, who represented the Petitioner at his first and second trials, was appointed to represent the Petitioner in 2010. When third counsel was appointed, the Petitioner was facing an additional offense of escape. She became familiar with the charges, reviewed the existing court file, and received the file from the Public Defender's Office. She discussed the delay between the presentment and trial with the Petitioner, who had expressed concern regarding the issue. She did not file a motion for speedy trial "based on the fact there were pending charges against [the Petitioner] for escape [and] because it would have been frivolous." Asked the substance of her conversation with the State regarding "the trying of only certain counts of the indictment at one time, " third counsel replied, "It was the district attorney and the judge and that was what the agreement was. We would do four at a time." In response to whether she had done any research on the issue, she replied, "Strategically, I felt it was the best way to proceed." She further opined that "if a jury heard that [the Petitioner] was on trial for 80 counts they might consider that in and of itself that he was guilty hearing that many at once." Her defense strategy in this regard did not change after she heard the testimony of the child victims in the first trial. Third counsel acknowledged that the social worker and the nurse practitioner did not testify at the first trial; nevertheless, she had "very thoroughly" reviewed the documentation supplied by them in discovery. She acknowledged that she did not file a motion in limine to exclude all or portions of their testimony and did not object to any of their testimony during the Petitioner's first or second trial.

         Third counsel further acknowledged that she did not object to certain testimony from Detective Gafford, and she did not know why she did not object. She did not file a motion in limine to exclude evidence gathered from the Petitioner's rented room. She agreed that neither child victim provided a time frame for the offenses during trial and opined it was because they were too young. She did not ask the trial court to require the State to elect or narrow down what offenses they were submitting to the jury at the close of the State's case or object based on double jeopardy principles after the acquittal in the first trial. In third counsel's view, there was not a double jeopardy concern because the rapes occurred on different dates. She contacted the Petitioner's employer to obtain his work records, but his employer was unable to provide any.

         Asked about the Petitioner's flight from Tennessee in 2001, third counsel said that she did not consider it to be flight because the Petitioner told her that he did not know there were any allegations or charges at that time. She confirmed that the Petitioner left Tennessee and was arrested in Texas for possession of firearms. She also agreed that he was convicted in federal court and sentenced to twelve years' imprisonment. Finally, she agreed that the Petitioner was serving this twelve-year sentence when he was brought back to Tennessee in 2008.

         Detective B.J. Gafford of the Dickson County Sheriff's Department testified that in early 2000, he traveled to Texas twice because he was subpoenaed to testify in federal court. Although Detective Gafford was unsure whether the Petitioner was in federal or state custody, he knew the Petitioner was somewhere in Texas. Detective Gafford inquired to ADA Menke about the Petitioner's case and was advised that the Petitioner would not be coming back to Tennessee anytime soon for trial. Detective Gafford confirmed that the Petitioner was in Texas because he fled Tennessee prior to his indictment. He also confirmed that the Petitioner was charged with escape while he was awaiting trial.

         Post-conviction counsel admitted by stipulation with the State a copy of the Petitioner's waiver of extradition and a January 31, 2003, letter from an Assistant U.S. Attorney to ADA Menke. Based on the waiver of extradition, the Petitioner voluntarily waived his rights to extradition and consented to return to Tennessee on April 4, 2002. He further consented to remain in Texas custody until transfer to Tennessee was arranged. An Assistant U.S. Attorney penned the January 2003 letter, which forwarded "materials" from the Petitioner's federal trial to the state's attorney, ADA Menke. The record also contains an April 20, 2006, ...


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