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					No. COA97-59                                                                              TWELFTH DISTRICT

                                   NORTH CAROLINA COURT OF APPEALS

                                  **************************************


STATE OF NORTH CAROLINA                                )
                                                       )
                    v.                                 )                 From Cumberland
                                                       )
KEVIN BRADLEY MARTIN                                   )


                                  **************************************

                                     DEFENDANT-APPELLANT'S BRIEF

                                  **************************************

                                           QUESTIONS PRESENTED

       I.           WHETHER THE TRIAL COURT ERRED BY DENYING
                    DEFENDANT'S REQUEST TO INSTRUCT THE JURY ABOUT SELF-
                    DEFENSE AND ABOUT SEAN BURNEY'S THREATS AND VIOLENT
                    REPUTATION?

      II.           WHETHER THE TRIAL COURT ERRED BY DENYING
                    DEFENDANT'S MOTION TO DISMISS THE UNDERLYING FELONY
                    FOR FELONY MURDER OF DISCHARGING A FIREARM INTO
                    OCCUPIED PROPERTY, WHERE THE EVIDENCE OF THAT FELONY
                    WAS INSUFFICIENT?


                                          STATEMENT OF THE CASE


            These case came on for trial at the January 8, 1996 Criminal Session of Superior Court for Cumberland

County, the Honorable Dexter Brooks, presiding, upon bills of indictment charging defendant with one count of

murder and one count of assault with a deadly weapon with intent to kill inflicting serious injury. (Rpp. 1, 6-7)

Following jury selection and the presentation of evidence, the jury on February 2, 1996 returned verdicts of

guilty of first-degree murder under the felony murder rule and guilty of assault with a deadly weapon with

intent to kill inflicting serious injury. The jury acquitted defendant of first-degree murder under the theory of

premeditation and deliberation. (Rpp. 1, 88) Following a capital sentencing hearing, the jury on February 7,

1996 recommended that defendant be sentenced to life imprisonment for murder. On February 7, 1996, Judge
                                                      -2-




Brooks sentenced defendant to life imprisonment for first-degree murder and to a consecutive sentence of 20

years imprisonment for the assault charge. Defendant entered notice of appeal of the judgment. (Rp. 1)


                                       STATEMENT OF THE FACTS


The State's Evidence


        The state presented evidence showing that on June 22, 1993, in Hope Mills (near Fayetteville),

defendant Kevin Bradley Martin shot Sean Burney and Randy Lee Dalton. The shootings stemmed from a feud

between Sean and defendant. Sean survived, but Randy died. Defendant, Sean Burney, Randy Dalton, and the

eyewitnesses for both sides were teenagers from Hope Mills who knew one another from school.


        Joseph Patrick ("Pat") O'Quinn, a friend of Sean Burney and Randy Dalton, was sixteen years old at

the time of the incident. On the morning of June 22, 1993, Pat O'Quinn, Sean Burney, Randy Dalton, and Brian

Bell, met at the home of another friend, Billy Strickland, to go swimming. Between 11:30 and noon, Sean

Burney and Randy Dalton left to go to a store; they were gone for only ten to fifteen minutes. Up to that point,

no one at the house had mentioned fighting with defendant that day. While they were gone, defendant, Sean

Terry, Jim Johnson, and Tony Lugo drove up to Mr. Strickland's house. Sean Terry arrived in a pickup truck,

with defendant and Tony Lugo as passengers in the back of the truck. Jim Johnson arrived in a car. Both

vehicles stopped at the edge of the road, near the end of a driveway that slopes up to the house. Sean Terry

walked up to the porch; he asked Pat O'Quinn and Brian Bell what problems Sean Burney and defendant had

with each other. Pat O'Quinn said that they had a grudge against each other and that defendant should leave to

avoid a fight when Sean Burney returned. Billy Strickland came outside and agreed to Jim Johnson's request to

use the restroom. Defendant and Tony Lugo stayed in the back of the pickup truck. (Armstrong Tpp. 983-91,

998, 1005-06)


        Sean Burney then drove up the driveway in his Honda Civic; Mr. Dalton was in the front passenger

seat. Pat O'Quinn admitted that in a pretrial statement, he said that Sean Burney looked mad when he got out of
                                                       -3-




the car and that Sean Burney and Randy Dalton were approaching defendant in a violent manner. Pat O'Quinn

was on Billy Strickland's front porch. The car began to roll back down the driveway, and Sean Burney and

Randy Dalton got into the car. Pat O'Quinn thought they were trying to stop the car from rolling. It rolled to

the bottom of the driveway and stopped. Pat heard gunshots; both Sean Burney and Randy Dalton were out of

the car then. He saw Randy Dalton slouch between the open passenger side door and the car. Sean Burney fell

onto the cement driveway. Two or three more shots were fired and Pat saw the car windows shatter and heard

bullets hitting the car. Pat O'Quinn saw defendant standing in the back of the pickup truck holding a .22 caliber

rifle. After he saw Sean Burney and Randy Dalton fall to the ground, Pat went inside with Brian Bell and Sean

Terry. They found a pistol and a shotgun in the house. Sean Burney came inside; he had been shot in the neck

and blood was on his back. Pat O'Quinn called 911. Others brought Randy Dalton inside. Pat saw a bullet hole

in his stomach. Then the police and EMT workers arrived. Before the gunfire, Pat did not hear Sean Burney or

Randy Dalton say anything to anyone or make any gestures toward the truck. (Armstrong Tpp. 991-97, 1006-

14)


         William ("Billy") Strickland lived on Hunting Ridge Road in Hope Mills on June 22, 1993. He was

sixteen years old then. He was a friend of Sean Burney and Randy Dalton. He confirmed Pat O'Quinn's

testimony about other friends coming to his house that day to swim. Although Billy said he did not know about

any plans to fight with anyone that day, he admitted that he had heard that a friend named Ryan McLaurin

called a girl named Kim Cook (a friend of defendant) to find out where defendant was. He also heard that Sean

Burney made a phone call, too. After Sean Burney and Randy Dalton left to drive to a store, Sean Terry, Tony

Lugo and defendant arrived in Sean Terry's pickup truck. Jim Johnson followed in his own car. Sean Terry

was a friend of Billy Strickland; Billy knew defendant from school. Billy later learned that defendant had told

Sean Terry not to stop at Billy's house that day because of a dispute that involved defendant. Sean Terry and

Jim Johnson walked up to the house. Jim Johnson asked to use the restroom, and Billy took him in the house.

While Billy was in the house, he heard noises that he later realized were gunshots. Then Brian Bell and Pat

O'Quinn came inside, saying that Sean Burney and Randy Dalton had been shot and asking for guns. They
                                                      -4-




found an unloaded shotgun and two pistols and went outside. Brian Bell tried to shoot one of the pistols, but it

would not fire. Billy saw defendant in the back of the pickup truck, holding a rifle. Defendant left the truck

and ran down the road. Sean Burney came in the house, with blood on his back. Randy Dalton was sitting on

the road, between the car door and the car. Jim Johnson and Tony Lugo carried him into the house. He looked

pale, but he was not bleeding; there was a bullet hole in his stomach. Police officers and EMT workers arrived.

(Armstrong Tpp. 1038-59, 1064-69)


        Brian Bell was eighteen years old at the time of the incident. He had been a friend of or at least known

Sean Burney, Randy Dalton, defendant Kevin Martin, and the other eyewitnesses for years. On the morning of

June 22, 1993, Sean Burney drove to Brian Bell's house to pick him up; they then picked up Randy Dalton and

drove to Billy Strickland's house. When Sean Burney arrived, Sean called Kevin about money he believed

Kevin owed him. Two years earlier, defendant accidentally damaged Sean's truck door when they were

throwing rocks at a train, and Sean wanted defendant to pay him $200 for the damage. Sean had confronted

defendant about that matter before. Sean has a bad temper and he "cussed" and possibly yelled at defendant on

the phone. Sean got into an "average" number of fights for a teenager. According to Brian, defendant said, "F--

k you, I'm not paying it." Sean said that defendant was going to give Sean his money, and that he would get it

one way or another. Sean might have said that he would take the money out of defendant's "as_." He asked

where defendant lived. During the phone call, Sean and defendant talked about them and their friends fighting

at a park in Fayetteville. Sean said they would have to fight at Eaglewood Park instead. One of them set the

time for the fight at 1:00 p.m. According to Brian, defendant said to Sean, "Bring your boys with you, you're

going to need them." Sean Burney was angry after that call. When Sean and Brian picked up Randy Dalton,

they did not mention to him the prospect of fighting with defendant; they talked to Randy about going

swimming. Brian did not see Sean or Randy put any weapons in Sean's car; he did not see any weapons in

Sean's car that day, and no one talked about getting a weapon. Sean is known to carry a knife, and he has used

it to cut a person and to threaten one or two people. (Armstrong Tpp. 1070-86, 1106-29)
                                                       -5-




         Brian Bell confirmed other testimony that they then went to Billy Strickland's house and that Sean and

Randy left to go to a store at one point. While they were gone, Brian talked to Billy and to Pat O'Quinn about

fighting defendant and others; that discussion was the first mention of fighting at Billy's house that day. Then

Sean Terry drove up in his truck, with defendant and Tony Lugo in the back; Jim Johnson followed in a car.

Sean Terry and Jim Johnson walked up to the front porch; Billy took Jim inside to use the restroom. Defendant

and Tony Lugo stayed in the back of the pickup. Brian, Sean Terry, and Pat stayed on the porch. Brian advised

Sean Terry to leave with defendant because Brian knew that Sean Burney would return soon and that Sean

Burney was angry at defendant. (Armstrong Tpp 1086-94, 1111, 1130-31)


         Then Sean Burney and Randy Dalton drove up Billy's driveway and got out of the car. They did not

say anything. Sean's car began to roll backward and Sean sat down, put his foot on the brake, and tried to pull

the emergency brake. Randy was walking backwards down the driveway, between the passenger side door and

the car. Brian heard gunshots and saw defendant standing over the top of the pickup, holding something that

looked like a rifle. Brian, Sean Terry, and Pat ran inside the house, Pat called 911, and Billy and Brian each

grabbed a pistol and ran back outside. Sean Burney and Randy Dalton were lying on the driveway, between the

car and the open front driver's and passenger's doors, respectively. Brian pointed his gun at defendant and tried

to shoot, but the safety was still on. Defendant pointed the rifle at the house. Then defendant ran down the

road. Brian, Billy, and Pat went back inside. Jim and Pat went outside and brought Randy into the house. Sean

Burney was bleeding from a gunshot wound; Randy had a gunshot wound to his stomach, but they did not see

any blood. (Armstrong Tpp. 1094-1102, 1131-32)


         Leighton Sean Burney was nineteen at the time of the incident. He was a friend of Brian Bell, Billy

Strickland, and Pat O'Quinn. He knew defendant and Sean Terry. He claimed that he never lies, but he then

admitted that he gave a false name to a state trooper during a traffic stop in 1994. Sean Burney said that on

June 22, 1993, he and defendant Kevin Martin argued over the telephone about an incident that had occurred

two years earlier. In that incident, Sean Burney, Kevin, and other boys were throwing rocks at a passing train.

Defendant threw a rock that bounced off the train and hit Sean's truck, denting a door. It caused $100 to $150
                                                       -6-




in damage to the door. Sean said that Kevin would have to pay for it, and defendant said he would. Eight

months before June 1993, Sean asked Kevin whether he had the money for the repair, and defendant said no.

(Armstrong Tpp. 1171-77, 1211-15)


         Sean testified that during the telephone call on the morning of June 22, he asked whether Kevin had

the money yet, and defendant said no. Sean asked when he would have it, and Kevin said he did not know.

Sean said he needed to get "my damn money." (Armstrong Tpp. 1177-80, 1230) According to Sean, Kevin

wanted to fight Sean at a park, and Sean said that if defendant wanted to fight he would have to do it at another

park. Sean denied that he voiced anger during the call, but he said that Kevin lost his temper and that defendant

said "You better bring all your damn boys." (Armstrong Tpp. 1180-81) Sean denied that he had threatened to

injure or kill Kevin or to shoot at defendant's mother's house. In conflict with Brian Bell's testimony, Sean

testified that he did not get upset with Kevin or say that he would get the money out of defendant's "as_,"

though he admitted that he and defendant argued. (Armstrong Tpp. 1181-82, 1230-34) Sean said that he did

not intend to fight defendant that day over the money. (Armstrong Tpp. 1182-83) Sean admitted that in

statements to the police after the incident, he first denied that Kevin owed him money and Sean first omitted

any mention of his telephone call to defendant about the debt on the morning of June 22. Later he admitted to

the police that his dispute with Kevin concerned money and that he had called defendant on June 22 about the

money. (Armstrong Tpp. 1215-22, 1249-51)


         After the phone call, Sean and Brian picked up Randy Dalton drove to Billy Strickland's house on

Hunting Ridge Road in Sean's Honda Civic. They planned to go swimming. At one point during the morning,

Sean and Randy left to go to a store. Sean testified that neither he nor Brian had a gun and that he has never

owned one. He has always had a baseball bat in the car; someone else once had put it in the car, and Sean had

never removed it. He said he did not think about the bat on June 22, 1993. He said that neither he nor Randy

Dalton had a knife that day. (Armstrong Tpp. 1183-89)
                                                        -7-




         When Sean and Randy returned from the store, Sean saw a pickup truck and a car parked on the street

near Billy Strickland's driveway. Sean said he was surprised; he asked Randy whether Kevin was in the back of

the truck. Sean saw that defendant and Tony Lugo were in the back of the truck. Sean drove up the driveway

to talk to Brian Bell and his other friends. Sean denied that he said anything to defendant or made a threatening

gesture to defendant. As Sean stepped out of the car with his left foot, the car began to roll back down the

driveway, and he put his right foot back on the brake. After he pulled his emergency brake, he stepped "about

halfway out of the car" and then heard gunshots. (Armstrong Tpp. 1189-93, 1268) Sean testified at first that

while his right foot was still in the car, he felt an impact that knocked him to the ground. However, on cross-

examination, he admitted that he was out of the car when he was hit. Then he said he was stepping out of the

car when he was hit. He was facing to the back of the car, with his left side toward the passenger's side and

facing Sean Terry's truck, when he was hit. A bullet entered the left side of his neck and exited from his back.

He saw blood and realized he had been shot. He heard six or more shots. He yelled at Jim Johnson to "get

Kevin." He thinks Randy was in the car when he heard the first gunshot. (Armstrong Tpp. 1193-94, 1240-42,

1254, 1264-65, 1269-73) The car rolled over his feet, and then Sean went into Billy Strickland's house. As he

ran inside, he saw Kevin holding something in his hands and saying three times, "What's up now?" Sean

testified that those were fighting words. He felt dizzy and fell. Then he went into a bedroom and waited for an

ambulance. Sean was hospitalized for five or six days. (Armstrong Tpp. 1194-1203) Sean saw his car two

weeks later. The driver's window was broken. There were two or three bullet holes in the driver's side door and

one in the seat. (Armstrong Tpp. 1205-08)


         Sean Burney denied that he had a reputation as a "bad guy" and that he had a temper. He said that he

had been in four or five fights, saying that he fought a lost less than average teenagers. He said that two of them

were fist fights, and that the others were just arguments. He denied that he ever used a weapon on anyone. He

said that he has always carried a small pocket knife for construction work. However, on cross-examination,

Sean admitted that he had pled guilty to assault with a deadly weapon for cutting someone at a restaurant. Sean
                                                       -8-




also admitted that after this incident, he pled guilty to breaking or entering and larceny. (Armstrong Tpp. 1200-

02, 1235-37, 1244-45, 1259-62)


         The state presented testimony of law enforcement officers about defendant's arrest and about

defendant's subsequent, brief departure from custody without permission and his recapture. After hearing a

radio alert for defendant on June 22, 1993 at 1:45 p.m., Hope Mills Police Chief John Hodges saw Kevin near

the scene of the shooting. Defendant gave him a false name. Detective Sergeant Anthony Previtte of the Hope

Mills Police Department brought Jim Johnson to the scene of the stop; he identified defendant. Detective

Daniel Ray Hardin took defendant to the police station. Kevin then told Captain Tonzie K. Collins, I, that the

.22 rifle was behind a shed near Shawn Marks' grandmother's house in Hope Mills. Hodges and Collins went to

that location with defendant and found the rifle there. While they were in the police car, a car drove by and the

driver yelled something. Defendant said, "Go to hell, mother f----r and said, "That's Bill Arnold. That's the one

I intend to get." (Armstrong Tpp. 1133-40, 1145-49, 1153-60, 1168-69, 1393-1402)


         That afternoon, defendant left Det. Previtte's office without permission, while Previtte was out of the

office. That night, between 7:00 and 8:00 p.m., Highway Patrol Troopers Anthony Thomas Parrish Vic Ward

stopped him and two friends, Curtis Moody and Shawn Marks, in a car registered to Shawn Marks'

grandmother, heading south on I-95, a mile from the South Carolina border. (Armstrong Tpp. 1140-43, 1150-

52, 1162-63, 1402-04)


         Deputy Brian Hotchkiss of the Cumberland County Sheriff's Department found 23 bullets of .22

caliber in the glove compartment of Sean Terry's truck. He found six shell casings outside the truck and one in

the truck bed. The .22 rifle found near the shed contained one live round in the chamber and nine live rounds in

the magazine tube. (Armstrong Tpp. 1308-54) On June 25, 1993, three days after the shooting, Captain Collins

and Det. Previtte examined Sean Burney's Honda and found bullet holes in outside of the passenger door, with

bullet fragments inside the door panel. There were bullet holes in the driver's door -- two in the inside and one
                                                      -9-




in the outside. They examined the car again on June 29, and they found a baseball bat, a paring knife with a

two-inch blade, and a marijuana pipe. (Armstrong Tpp. 1164-68, 1406-13


        Dr. Roy Weaver, medical examiner for Cumberland County, performed the autopsy on Randy Dalton.

He removed one bullet.     It had entered the left abdominal wall beneath the rib cage and hit the main

(mesenteric) artery to the upper intestine and the jejunum and colon. The cause of death was loss of blood from

penetration of the mesenteric artery. (Armstrong Tpp. 1293-1307)


        Special Agent A.L. Langley of the State Bureau of Investigation testified as an expert in firearms and

toolmark investigation. All seven spent cartridge cases had been fired by the rifle used by Kevin. He could not

reach a conclusion about whether the fired bullet he examined had been fired from that rifle. The rifle used by

Kevin holds seventeen rounds in the magazine and one in the chamber. (Armstrong Tpp. 1358-91)


Defendant's Evidence


        Defendant Kevin Bradley Martin and witnesses Curtis Moody and Sean Terry testified about the

shootings and the events leading to the shootings. Kevin Martin was eighteen years old at the time of the

incident. He had known Sean Burney and Randy Dalton for several years. They had a hostile relationship. In

the eighth grade, Sean, Randy, and other boys beat up Kevin. During high school, Sean Burney, Kevin, and

other boys were throwing rocks at a passing train and Kevin threw a rock that bounced off the train and hit the

door of Sean's truck. The rock put a small dent in the door. Kevin told Sean it was an accident, but Sean was

extremely upset and wanted to fight at the scene. Sean wanted Kevin to pay for the repair, but Kevin said he

would not pay. Sean became angry. Later, Sean confronted Kevin two or three other times, demanding money

for the repair. That incident soured Kevin's relationships with Sean's friends, including Randy Dalton. In the

period before June 22, 1993, Kevin saw Sean (often with Sean's friends) occasionally, and Sean was upset about

the repair money. (Armstrong Tpp. 1438-50)
                                                     -10-




        On the morning of June 22, 1993, Sean Burney called Kevin about the repair money. Curtis Moody

was with Kevin during the call. Sean asked whether Kevin had the money. Kevin said no. Sean told Kevin

that if he did not obtain the money, Sean would "take it out of Kevin's as_." (Armstrong Tpp. 1450-52, 1455)

Kevin said he did not feel he owed the money to Sean. Sean became angrier. He asked where Kevin lived and

said he would kill Kevin if he got his hands on Kevin. Kevin interpreted that threat as a threat to injure him

seriously, if not to kill him. Kevin was worried that Sean might kill him. Sean said he would go to Kevin's

mother's house if he could not find Kevin's address. Kevin had tried to keep the conversation calm, but that

threat made Kevin hostile. Sean cursed at Kevin a lot during the call. Sean told Kevin to meet him at a park in

Eaglewood with all of Kevin's friends and his guns and other weapons, because Sean would bring his own

friends, guns, and weapons. Kevin was upset because of Sean's threats and hostility over such a small dispute.

(Armstrong Tpp. 1452-57, 1517-23, 1532-33)


        Kevin believed Sean was serious about his threats because Sean and his friends (including Randy

Dalton) had a reputation for violence and for carrying weapons. Although Kevin had never seen Sean carry a

weapon, he had see Sean in the company of people who had guns and other weapons. Kevin had heard that

Sean had used weapons in fights, that Sean had cut someone with a knife. (Armstrong Tpp. 1456-57, 1534-37)

After Sean's call, Curtis Moody called some of his own friends because of Sean's threats. He called Shawn

Marks, Jim Johnson, Tony Lugo, and Sean Terry. The only boy whom Kevin knew well was Sean Marks.

Without Kevin's knowledge, Sean Terry brought a rifle; Sean Terry had had a previous problem with Sean

Burney. Curtis Moody called his friends to help Kevin because there might be a fight with Sean Burney and his

friends. (Armstrong Tpp. 1457-60, 1520-25)


        Kevin intended to meet and talk with Sean Burney. He was ready to fight Sean if necessary to end

their dispute. In light of Sean's reputation for violence, he thought there would be a fight. However, he wanted

to settle the matter peacefully, without a fight. Kevin called a girl named Lindsay Cobb about the situation,

telling her that Sean Burney told him to bring his friends, guns, and knives. She advised Kevin not to bring
                                                      -11-




weapons; he had no intention of bringing weapons, as he told her. (Armstrong Tpp. 1460-61, 1498-99, 1520-

21)


         Kevin, Curtis, Shawn, Sean Terry, Jim and Tony drove to Eaglewood Park. Kevin rode in Jim

Johnson's car, Sean Terry and Tony were in Sean Terry's pickup truck, and Shawn and Curtis were in Shawn's

car. At the park, Kevin joined Tony in the back of Sean Terry's truck. He first learned then that Sean Terry had

a rifle. (Kevin knew that Sean Terry generally carried a rifle in his truck). Sean Terry passed the rifle back to

Tony. Tony had a bandana around his head, which Tony then wrapped around the rifle to catch shells in case

they had to fight. Tony pulled his T-shirt over his head to be masked. Kevin and his friends feared that Sean

Burney and his friends would have a gun. Kevin did not intend to shoot at them. Kevin did not take the rifle

then. (Armstrong Tpp. 1461-64, 1515-16, 1537-42)


         They drove through the park, but they did not see Sean Burney or his friends. Kevin was relieved.

Kevin told Sean Terry to drive him home. They began to drive toward Kevin's home. Jim Johnson drove

behind them (Curtis Moody and Shawn Marks had become separated from them and did not go to the park or to

Billy Strickland's house). Sean Terry took a route that went past Billy Strickland's house. He stopped at Billy's

house. Kevin did not know that Sean Terry would stop there. Kevin saw friends of Sean Burney in Billy's

yard, and he asked Sean Terry why he was stopping there. Sean Terry said he wanted to talk to them to calm

the situation. Kevin said that was a bad idea and he told Sean Terry to take him home. However, Sean Terry

left the truck to talk with Sean Burney's friends. The rifle was next to Tony Lugo in the back of the pickup.

(Armstrong Tpp. 1464-68)


         Then Sean Burney drove up fast to Billy's house, onto the driveway, with Randy Dalton. Sean Burney

jumped out of the driver's side and Randy jumped out of the passenger's side. Sean yelled "Don't go nowhere. I

have something for you." (Armstrong Tp. 1469) Kevin yelled something in response. Sean Burney and Randy

went toward Sean Terry's truck. Kevin had been ready to jump out of the pickup to defend himself, but when

Sean Burney and Randy approached the pickup, Tony gave Kevin the rifle. Kevin fired a warning shot into the
                                                       -12-




air. At that point, Sean Burney's car began to roll backward, and Sean jumped into the car to stop it. Sean

Burney said "He's armed, Randy. Get the gun." Randy kneeled down on one knee, and reached into the open

passenger's door. Kevin thought Randy was getting a gun. Randy came out with an object in his hand and

turned around. Kevin did not know what the object was. Kevin then became very fearful for his own life. At

that point, Kevin stood up in the back of the pickup. He fired six shots toward the car without aiming at Randy.

He did not fire into the car, though bullets hit the open car doors. Sean Burney and Randy were outside Sean's

car, coming toward Kevin, when Kevin fired. When Kevin fired those shots, he was afraid of getting shot or

seriously injured because he was afraid that Randy had a gun. Kevin testified that he would not have shot at

Sean Burney or Randy Dalton if he had not feared for his own safety. He did not intend to kill Randy Dalton at

any time that day. (Armstrong Tpp. 1469-72, 1484-87, 1544-49, 1635-39, 1644)


         Kevin saw Randy fall and realized he had shot Randy. He saw Sean Burney jump up, bleeding, and

run for the house. Kevin panicked and ran away. He dropped the rifle behind a nearby shed. About an hour

later, Chief Hodges stopped him. He gave Hodges a fake name because he was scared. Officers took him to the

police station. He then led officers to the rifle near the shed. After they returned to the Hope Mills police

station, the officers left Kevin in an office. Kevin became scared, and he left the police station. He later called

Lindsay Cobb, telling her that he had shot Randy Dalton and Sean Burney and that he did not mean to shoot

them. He saw other friends and eventually he found Shawn Marks and Curtis Moody. He learned that Randy

had died. That news upset him. (Armstrong Tpp. 1472-79, 1486, 1527-28) Kevin was scared, and he rode with

Shawn Marks and Curtis Moody south on I-95, heading south toward Myrtle Beach, S.C. State troopers

stopped them near the South Carolina border. (Armstrong Tpp. 1479-80)


         Kevin acknowledged that he has prior convictions for breaking or entering and larceny, forgery and

uttering, and underage drinking. He said that he had a problem with alcohol and drugs and had participated in

Narcotics Anonymous and had attended Fayetteville Technical Community College at night. (Armstrong Tpp.

1443-49, 1490-95, 1499-1514)
                                                       -13-




         Detective Anthony Previtte read a statement given by Kevin, the transcript of an interview with Kevin,

and his notes from an interview with Kevin, all recorded on June 22, 1993. These items corroborated Kevin's

testimony; they were introduced as substantive evidence. Previtte's notes also state that on the morning of June

22, Curtis Moody called Sean Terry and told him to bring a gun. The notes also state that at an unspecified

point during the incident, Sean Burney was ducking down inside; the notes state that Kevin shot inside the car.

(Armstrong Tpp. 1647-96)


         Curtis Moody testified that he was with Kevin when Brian Bell and Sean Burney called on June 22,

1993. Sean Burney has a dangerous and combative reputation. Curtis recounted incidents when Sean Burney

had hit his car from behind, when Sean had been with Bill Arnold when either Sean or Bill drove by Curtis and

shouted to "Get down, Mother f___er" and shot a gun into the air, and when Sean drove by Curtis and said "I'll

get you." He had seen Sean Burney confront Kevin about the repair money at a flea market. Curtis heard part

of the telephone conversation with Sean on an extension. Sean was angry. Sean wanted his money and said

"I'm going to kill you MF." Sean said "I'll just go to your mother's house," and Kevin said "it's not going to go

that way." Kevin and Sean cursed at each other. Sean told Kevin to meet him at a park in Eaglewood to fight,

saying "You either pay me my money or we'll settle it this way." Sean told Kevin 'he'd better bring all he's got."

Kevin was upset after the call. Curtis called up friends to go with Kevin and him, including Sean Terry, Tony

Lugo, and Jim Johnson. Curtis talked to Tony about bringing a gun; Tony also had problems with Sean Burney.

Curtis called his girlfriend, Lindsay Cobb, and told her about the call from Sean Burney. Curtis thought there

would be a big fight at the park, but none of his friends intended to kill anyone. Curtis did not go to the park or

to Billy Strickland's house. He and Shawn Marks went with Kevin on I-95 that evening and were stopped by

state troopers; Kevin was upset and scared. Curtis pled guilty to accessory after the fact. (Armstrong Tpp.

1699-1718)


         Sean Terry, a friend of Kevin Martin, testified that he picked up Kevin on June 22, 1993 in response to

a call from Curtis Moody. Kevin and Tony Lugo rode in Sean's truck. Sean did not hand his rifle back to Tony;

Tony might have taken it to the back of the truck. After going to the park in Eaglewood, Sean drove to Billy
                                                     -14-




Strickland's house; Kevin told him twice not to stop there. Sean, who was a friend of Billy, stopped anyway

and went to Billy's porch. Sean Burney and Randy Dalton soon arrived; Sean Burney "floored" his car up the

driveway when he saw Sean Terry's truck. Sean Burney left his car quickly and said, "Don't go nowhere,

Kevin." Sean Burney looked angry; he looked like he wanted to hit Kevin. Sean Burney's car began to roll

down the driveway. Sean approached Kevin. Then Kevin fired the rifle that Sean Terry kept in his truck (no

one had told Sean Terry to bring a gun). Sean Burney ran back toward his car. After the shooting, Sean Terry,

Tony Lugo, and Jim Johnson went to Randy Dalton. Randy was sitting in the front passenger seat of the car.

Sean Terry testified that Sean Burney has a reputation for starting fights. Sean Terry recounted incidents in

which Sean Burney and his friends assaulted Sean Terry, pointed guns at him, and threatened to cut him.

(Armstrong Tpp. 1747-54, 1764-70, 1775-80, 1788, 1796)


        Lindsay Cobb, a friend of Kevin Martin, testified about telephone calls Kevin made to her before and

after the shootings on June 22, 1993. Before the shooting, Kevin told her about Sean Burney's phone call to

him, in which Sean yelled and cursed, demanded his money, told Kevin he would take the money "out of his

as_," and proposed to fight with weapons. Kevin told Lindsay that he did not want to fight. After the

shootings, Kevin called Lindsay and told her what had happened.         His recounting of the shootings was

consistent with his testimony about the shootings, including the fact that he told Sean Terry to drive him home

and not to stop at Billy Strickland's house and that Sean Burney mentioned a gun before Kevin fired the shots.

(Armstrong Tpp. 1831-42)


        Heather McBride Cashwell testified about a phone call she received from Kevin Martin after the

shootings. Kevin told her that Sean Burney had said he had a gun during a phone call before the shootings; that

Kevin had told Sean Terry not to stop at Billy Strickland's house; that Sean Burney got out of his car, walked

toward Kevin, and told Kevin not to go anywhere; and that Kevin became scared and fired the rifle when he

thought Sean Burney was getting a gun and was going to shoot Kevin. Sean Burney has a reputation for

starting fights and for violence. (Armstrong Tpp. 1842-55) Amber Smith Stout testified about phone calls she

received from Kevin before and after the shootings. Before the shootings, Kevin said that Sean Burney was
                                                      -15-




going to fight him, that Sean said he had something for Kevin. After the shootings, Kevin asked Amber to find

out about Randy Dalton's condition. When she told him that Randy had died, Kevin became very upset and

cried. Amber said that Sean Burney has a reputation for starting fights, for getting into trouble, for carrying a

gun and sometimes a knife, and for shooting into houses. (Armstrong Tpp. 1856-78)


         Deputy Sheriff Ritchie J. Alfano of the Cumberland County Sheriff's Department testified that Sean

Burney has a reputation as a troublemaker, as a person who starts fights. (Armstrong Tpp. 1878-89)


The State's RebuttalLeighton Sean Burney either denied or admitted and explained some of the

incidents of violent or threatening conduct of which Curtis Moody and Sean Terry accused him. (Armstrong

Tpp. 1903-12)


                                                 ARGUMENT



       I.         THE TRIAL COURT ERRED BY DENYING DEFENDANT'S
                  REQUEST TO INSTRUCT THE JURY ABOUT SELF-DEFENSE
                  AND ABOUT SEAN BURNEY'S THREATS AND VIOLENT
                  REPUTATION.

                  Assignment of Error No. 10 (Rp. 109)
                  Assignment of Error No. 11 (Rpp. 109-10)


         During the guilt-innocence phase charge conference, defendant asked the trial court to instruct the jury

about self-defense as a defense to all of the charges: first-degree murder of Randy Dalton on the theory of

premeditation and deliberation, first-degree felony murder of Randy Dalton on the basis of the alleged

underlying felonies of felonious assault and shooting into occupied property, and assault of Sean Burney with a

deadly weapon with intent to kill inflicting serious injury. (Armstrong Tp. 1947, lines 6-16) Defendant also

asked the trial court to give related instructions about Sean Burney's threats to defendant and about Sean's

reputation for violence. (Armstrong Tpp. 1956, 1961) However, after first indicating that it would instruct

about self-defense (Armstrong Tpp. 1954, 1965), the trial court decided not to instruct the jury about self-

defense as a defense to any of the charges. (Armstrong Tpp. 2035, lines 7-14; 2041, lines 3-4) The trial court
                                                       -16-




also denied defendant's requests for instructions about Sean Burney's threats to defendant and about Sean's

reputation for violence. (Armstrong Tp. 1985, lines 8-11; Tp. 1995, lines 6-15)


         The trial court erred by denying these requests. Since the jury acquitted defendant of first-degree

murder on the basis of premeditation and deliberation (Rp. 88), and convicted defendant of felony murder

instead (Rp. 88), the trial court's error in denying an instruction on self-defense as a defense to first-degree

murder under that theory was harmless. Accordingly, in this appeal, defendant does not raise the trial court's

error in denying defendant's request for self-defense instructions in regard to first-degree murder on the theory

of premeditation and deliberation. Rather, defendant challenges on appeal the trial court's error in denying an

instruction on self-defense to the underlying felonies for felony murder (and, therefore, self-defense to felony

murder): felonious assault and shooting into occupied property. Also, defendant challenges the trial court's

related error in denying instructions on Sean Burney's threats and violent reputation.


         In State v. Richardson, 341 N.C. 658, 668, 462 S.E.2d 492, 499 (1995), the Supreme Court held that

self-defense functions as a full defense to felony murder if it serves as a defense to the underlying felony for a

felony murder charge. Of course, self-defense normally cannot serve as a defense to inherently aggressive

underlying felonies such as arson, rape, and robbery. However, in some cases, an alleged underlying felony is

not inherently aggressive, and self-defense can serve as a defense to such a felony. The underlying felonies

alleged in this case -- felonious assault and shooting into occupied property -- are not inherently aggressive. For

example, if an assailant (the ultimate "victim") shoots at a defendant from inside a vehicle and the defendant

shoots back to defend himself and injures the assailant, the act of shooting back is certainly not inherently

aggressive. Depending on whether the defendant is justified in shooting back, his conduct can be seen either as

an act through which he properly defends himself against a wrongful attack (and, therefore, as a purely

defensive, justified act) or as the crimes of felonious assault and shooting into occupied property. State v.

Richardson, supra; John Rubin, The Law of Self-Defense in North Carolina, _6.1, at 148 (Institute of

Government, 1996).
                                                           -17-




         The question, then, is whether defendant was entitled to instructions on self-defense as a defense to the

underlying felonies of felonious assault and shooting into occupied property. A defendant is entitled to an

instruction on self-defense as a defense to those non-homicide charges if, it appears that (1) the defendant

reasonably believed that he had to use a deadly weapon or to fire into occupied property in order to protect

himself from death or serious bodily injury from an actual or apparent assailant(s); (2) the defendant was not the

aggressor or withdrew from an assault or mutual confrontation; and (3) the defendant used reasonable force.

State v. Clay, 297 N.C. 555, 256 S.E.2d 176 (1979), overruled on other grounds, State v. McAvoy, 331 N.C.

583, 417 S.E.2d 489 (1992); State v. Marsh, 293 N.C. 353, 237 S.E.2d 745 (1977).                 See also State v.

Musselwhite, 54 N.C. App. 68, 283 S.E.2d 149 (1981), aff'd per curiam, 305 N.C. 295, 287 S.E.2d 897 (1982);

N.C.P.I. -- Crim. 308.45; John Rubin, The Law of Self-Defense in North Carolina, supra, _6.1, n. 6 (self-

defense applies to crime of shooting into occupied property).


         It is vital to keep two rules in mind when applying these criteria for self-defense to a non-homicide

crime. First, self-defense applies if the danger to the defendant is either actual or apparent. State v. Spaulding,

298 N.C. 149, 257 S.E.2d 391 (1979); State v. Marsh, supra; State v. Lovell, 93 N.C. App. 726, 379 S.E.2d 101

(1989). Second, when a trial court considers whether to the evidence supports an instruction on self-defense,

the trial court must consider the evidence in the light most favorable to the defendant. It is for the jury, not the

trial court, to resolve any conflicts in the evidence. If the evidence taken in the light most favorable to the

defendant supports self-defense, then the trial court must instruct on self-defense. State v. Marsh, supra; State

v. Blackmon, 38 N.C. App. 620, 248 S.E.2d 456 (1978), review denied, 296 N.C. 412, 251 S.E.2d 471 (1979).


         In this case, the evidence required an instruction on self-defense. Clearly, there was a conflict between

important points in defendant's evidence and in the state's evidence relevant to self-defense. However, it was

for the jury, not the trial court, to resolve those conflicts.


         Taken in the light most favorable to defendant Kevin Martin, the evidence, as summarized above in the

Statement of Facts, shows the following:           Sean Burney and Kevin had a feud that began when Kevin
                                                       -18-




accidentally damaged the door to Sean's truck and Sean demanded that he pay for the repair. Kevin's refusal or

failure to pay for the repair led to Sean's repeated confrontations with Kevin and Sean's repeated demands that

Kevin pay him the money. Kevin knew of Sean Burney's reputation for violence and for carrying and using

weapons in fights. On the morning of June 22, 1993, in a phone call made by Sean to Kevin, Sean again

demanded the money, became angry and cursed at defendant, told defendant he would take the money "out of

Kevin's as_," told Kevin he would find Kevin's mother's house, asked Kevin where he lived and threatened to

kill Kevin if he got his hands on Kevin, and told Kevin to meet him at a park in Eaglewood with Kevin's friends

and guns and other weapons so that they could resolve the matter by fighting. Kevin testified that he was afraid

that Sean would kill him or seriously injure him. Kevin's friend Curtis Moody rounded up other friends, who

rode in two vehicles to the park designated by Sean Burney. Kevin rode as a passenger in the back of Sean

Terry's pickup truck. The adversaries were not in the park, so Kevin and his friends left the park. Sean Terry

drove to the home of Billy Strickland, a friend of Sean Burney. To avoid a confrontation with Sean Burney,

Kevin twice told Sean Terry not to go to Billy Strickland's house, and to take Kevin home instead. However,

Sean Terry decided to go to Billy's house anyway. Shortly after they arrived, Sean Burney drove up Billy's

driveway at a fast speed, with Randy Dalton as his passenger. Sean and Randy jumped out of the car, and Sean

told Kevin not to go anywhere, that "I have something for you." Sean and Randy approached the pickup truck.

Tony Lugo gave Kevin a rifle (Sean Terry did not bring the rifle to use against Sean Burney; he regularly

carried the rifle in the truck) and Kevin fired a warning shot into the air. Sean Burney said, "He's armed,

Randy. Get the gun." Randy reached into the passenger's side door, came out with an object in his hand, and

turned around toward the pickup truck. Kevin thought Randy had a gun and he was afraid of getting shot and

seriously injured. He fired only to protect himself from serious injury.


         This evidence shows the following key facts: a long-running dispute between Sean Burney and Kevin,

threats on the morning of the incident by Sean to kill or seriously injure Kevin, an attempt by Kevin to avoid a

confrontation with Sean Burney after the trip to the park, Kevin's awareness of Sean's reputation for violence

and for carrying and using weapons, Sean's statement that "I got something for you" as Sean and Randy jumped
                                                         -19-




out of the car and approached Kevin, Sean's reacting to Kevin's warning shot by telling Randy to get a gun, and

Randy's immediate response of reaching into the car and turning around with an object that Kevin feared was a

gun. Taken in the light most favorable to the defendant, this evidence shows that after trying to avoid any

further confrontation, Kevin reasonably feared that Sean and Randy were advancing on him to carry out Sean's

threats to kill or seriously injure him. When Kevin reasonably responded by firing a warning shot, Sean and

Randy's reaction reasonably made Kevin fear that Randy had grabbed a gun to shoot Kevin. Thus, the jury

reasonably could have found that Kevin reasonably believed that he needed to defend himself against an actual

or apparent deadly assault by Sean Burney and Randy, that at the time of the shooting Kevin had done what he

could to avoid a confrontation with Sean Burney, and that Kevin used a reasonable degree of force in light of

his reasonable fears about Sean's and Randy's intentions and in light of Sean's reputation and recent threats to

kill or seriously injure Kevin. Even if the trial court or this Court believes that the state has the more persuasive

argument on the conflicting evidence about self-defense, defendant still had the right to have the trial court

instruct the jury about self-defense so that the jury could resolve the conflict.


         With respect to the requirement that a defendant not be an aggressor or that a defendant withdraw from

any affray and communicate his intent to withdraw, it is crucial to note that Kevin Martin was not an aggressor

at the time of the shootings. Viewing the evidence in the light most favorable to defendant, it was Sean Burney

who initiated all confrontations with defendant that day when Sean called Kevin and threatened to kill or

seriously injure Kevin and when Sean told Kevin to appear in a park with his friends and weapons for a fight

because of their feud about money. To be sure, Kevin and his friends went to the park in Eaglewood expecting

either a verbal or a violent confrontation with Sean Burney and his friends. However, Sean Burney was not

there, and no fight or other confrontation occurred. The only physical confrontation of the day occurred at Billy

Strickland's house. The evidence taken in the light most favorable to defendant showed that Kevin Martin

sought to avoid that confrontation by twice telling Sean Terry not to stop at Billy's house and to take Kevin

home. Note that in sentencing defendant for the assault against Sean Burney, the trial court found as a

mitigating factor that Kevin told Sean Terry not to stop at Billy's house. (Armstrong Tp. 2419, lines 11-13) In
                                                         -20-




the light most favorable to defendant, the evidence further shows that Sean Burney and Randy Dalton initiated

the final confrontation by jumping out of Sean's car and approaching Kevin -- who was simply sitting in Sean

Terry's truck -- and that Sean further initiated the confrontation by shouting to Kevin not to go anywhere and

that Sean had "something" for Kevin. Thus, the evidence taken in the light most favorable to defendant shows

that no affray occurred before the final incident at Billy's house, that Kevin Martin tried to avoid that

confrontation, and that Sean Burney and Randy Dalton initiated that confrontation as the sole aggressors.

Moreover, the question here is not whether this Court or the trial court agrees with this interpretation of the

evidence concerning who was the aggressor, but rather whether the jury reasonably could have interpreted the

evidence this way.


         Given this evidence, taken in the light most favorable to defendant, the trial court erred by refusing to

instruct the jury on self-defense as a defense to the underlying felonies. The evidence supporting self-defense

was sufficient to entitle defendant to present his theory of the case to the jury. In addition, the evidence of Sean

Burney's reputation for violence and of his prior threats to defendant entitled defendant to related jury

instructions on those issues. Early in the charge conference, the trial court appeared to understand its duty to

instruct on self-defense, including its duty to instruct when there is conflicting evidence on self-defense.

(Armstrong Tpp. 1954, 1965) However, the trial court later decided not to instruct on self-defense to any of the

charges, thereby depriving defendant Kevin Martin of his only defense to felony murder and to assault with a

deadly weapon with intent to kill inflicting serious injury. By refusing defendant's request to instruct on self-

defense and on Sean's reputation for violence and threats, the trial court violated defendant's rights under state

law and under the Sixth Amendment and Due Process Clause of the Fourteenth Amendment to the United

States Constitution. The trial court's error requires a new trial.
                                                          -21-




       II.            THE TRIAL COURT ERRED BY DENYING DEFENDANT'S
                      MOTION TO DISMISS THE UNDERLYING FELONY FOR FELONY
                      MURDER OF DISCHARGING A FIREARM INTO OCCUPIED
                      PROPERTY, WHERE THE EVIDENCE OF THAT FELONY WAS
                      INSUFFICIENT.

                      Assignment of Error No. 8 (Rp. 109)


             The jury rested its verdict of guilty of felony murder on two underlying felonies: felonious assault and

discharging a firearm into occupied property. (Rp. 88) However, the evidence was insufficient to support a

finding that defendant was guilty of shooting into occupied property. Accordingly, the trial court erred by

denying defendant's motion at the close of the state's case and at the close of all the evidence to dismiss that

basis of felony murder. (Armstrong Tpp. 1436, 1923)


             Defendant acknowledges that in reviewing the sufficiency of evidence, an appellate court must

consider the evidence in the light most favorable to the state. To prove the crime of discharging a firearm into

occupied property, the state must prove that the defendant willfully or wantonly discharged or attempted to

discharge a firearm into property (such as a vehicle) at the time it was occupied. N.C. Gen. Stat. _14-34.1; State

v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973). In this case, there is no evidence from which a rational juror

reasonably could find that either Sean Burney or Randy Dalton was in the car when defendant fired into the car.

The key to understanding the insufficiency of the state's evidence lies in understanding the relative positions of

Sean Burney's car and Sean Terry's pickup truck when defendant fired the rifle. Sean Burney's car was facing

up Billy Strickland's driveway.        Sean Terry's pickup truck was on the street near the driveway, on the

passenger's side of the car. Sean Burney admitted on cross-examination that when he was hit by the bullet, he

was out of the car, facing to the back of his car, with his left side next to his car. Prosecution witness Pat

O'Quinn also testified that Sean was out of the car when he was shot. The fact that the bullet entered the left

side of his neck confirms that he must have been out of the car when he was hit. He could not have been in the

car when he was hit; if he had been in the car, the bullet could have entered his neck only from the right.


             Pat O'Quinn testified that Randy was out of the car when defendant fired the shots. In addition, the

physical evidence (including the autopsy) proves that Randy was out of the car when he was hit. Randy's
                                                       -22-




entrance wound was on his left side. See autopsy testimony of Dr. Weaver, at Armstrong Tp. 1305, lines 7-10

As with Sean Burney, the entrance wound on the left side proves that he must have been out of the car, facing to

the back of the car, when he was hit. If he had been in the car, the bullet could only have entered his abdomen

from the right. See closing argument of defense counsel Britt. (Armstrong Tpp. 2096-97, 2105) Defendant

knows that Sean Terry said that Randy was sitting in the car when Sean Terry, Tony Lugo, and Jim Johnson

found him. However, this evidence does not prove that Randy was in the car when the shots were fired. His

location when they found him is equally consistent with his getting into the car after he was shot; indeed, that is

the only possible explanation of his final location in light of the physical evidence that proves that he must have

been out of the car when he was hit. Moreover, prosecution witnesses Pat O'Quinn and Brian Bell testified that

Randy was out of the car, on the driveway, after he was shot.


         In summary, there is no eyewitness testimony or physical evidence showing that either Sean Burney or

Randy Dalton was in the car when defendant fired shots into the car, and the evidence does not support any

inference that they were in the car when shots hit the car. Of course, defendant shot Sean and Randy, and at

some point defendant shot into the car. However, the evidence proves that they were both out of the car when

the defendant shot them, and no eyewitness testimony or physical evidence shows that they were in the car

when any bullets entered the car. Accordingly, the trial court erred in instructing the jury on the crime of

discharging a firearm into occupied property as an underlying felony for felony murder.


         The trial court's error prejudiced defendant by permitting the trial court to sentence defendant

separately and consecutively for the conviction for assault with a deadly weapon with intent to kill inflicting

serious injury. Since the jury based its verdict on felony murder on both the underlying felonies of felonious

assault and discharging a firearm into occupied property, the insufficiency of the evidence of discharging a

firearm into occupied property does not negate the felony murder verdict. However, the felonious assault

charge must merge into felony murder and cannot be used additionally to support a separate conviction and

consecutive sentence for felonious assault. In short, the insufficiency of the evidence on discharging a firearm
                                                     -23-




into occupied property requires the arrest of the judgment for assault with a deadly weapon with intent to kill

inflicting serious injury.
                                                       -24-




                                                CONCLUSION


        For the reasons set forth above, defendant respectfully submits that he is entitled to a new trial.


        This the 21st day of April, 1997.

                                                  Respectfully submitted,



                                                  _____________________________________
                                                  Benjamin Sendor
                                                  Assistant Appellate Defender

                                                  Malcolm Ray Hunter, Jr.
                                                  Appellate Defender
                                                  Office of the Appellate Defender
                                                  200 Meredith Drive, Suite 200
                                                  Durham, North Carolina 27713
                                                  (919) 560-3334

                                                  ATTORNEYS FOR DEFENDANT-APPELLANT


                                        CERTIFICATE OF SERVICE


        I hereby certify that I have caused to be served a copy of the foregoing Defendant-Appellant's Brief on
Mr. Thomas F. Moffitt, Special Deputy Attorney General, North Carolina Department of Justice, Old Education
Building, 114 W. Edenton Street, Raleigh, North Carolina, by depositing an envelope containing the same in the
State Courier Service.

        This the 21st day of April, 1997.




                                                  _____________________________________
                                                  Benjamin Sendor
                                                  Assistant Appellate Defender

				
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