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Kieren v. State of Nevada Attorney General

United States District Court, D. Nevada

September 27, 2019

DENNIS K. KIEREN, JR., Petitioner,
v.
STATE OF NEVADA ATTORNEY GENERAL, et al., Respondents.

          ORDER

          LARRY H. HICKS, UNITED STATES DISTRICT JUDGE

         Dennis K. Kieren, Jr.’s 28 U.S.C. § 2254 habeas petition is before the court for final adjudication on the merits. In 2011, this court conditionally granted habeas relief (ECF No. 44). The court reached only ground 5, in which petitioner alleged that he was denied due process during his jury trial for murder in violation of the Fifth and Fourteenth Amendments because the trial court’s jury instructions failed to adequately distinguish between the elements of malice aforethought, premeditation, and deliberation. Id. at 19. Judgment was entered (ECF No. 45).

         Respondents appealed, and the Ninth Circuit Court of Appeals affirmed this court’s decision on March 25, 2014 (ECF Nos. 46, 52). Subsequently, the Ninth Circuit withdrew its memorandum disposition affirming, reversed the grant of habeas relief as to ground 5 in light of an intervening U.S. Supreme Court decision and remanded for consideration of the remaining claims (ECF No. 59). Petitioner and respondents filed supplemental briefing with respect to grounds 2, 6, 7, 8, and 9 (ECF Nos. 71, 76).

         I. Background

         The court recounts the background set forth in its previous order that conditionally granted habeas relief on ground 5.

         Kieren seeks to set aside his 1999 Nevada state conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon. He is serving two consecutive life sentences without the possibility of parole.

         Kieren was convicted of the March 7, 1996, murder of David Allan Broyles. It was undisputed that Kieren shot Broyles multiple times with a 9 mm semiautomatic handgun. The factual dispute at trial focused upon the circumstances leading up to the shooting and Kieren’s state of mind at the time of the shooting. The State and the defense presented markedly different evidence as to what occurred. The jury instructions at issue went to the heart of the dispute as to intent, under either account of the event. The question at trial was not whether Kieren killed Broyles but instead was his state of mind at the critical time, which bore not only on his defense of self-defense but also upon, among other things, the issue of whether he was guilty of second-degree murder rather than first-degree murder.[1]

         Dennis Kieren had known David Broyles and Michael Woods, separately, for approximately three years prior to the incident.[2] Kieren had interacted socially and professionally with Broyles and Woods, again separately, in one fashion or another over this time. Broyles and Woods also had known each other for about four years, but each did not know that the other also knew Kieren. Woods and Kieren each had some background, to one extent or another, in fugitive retrieval (“bounty hunting”) and/or armed security work.[3]

         At the relevant time, Broyles was renting from Kieren and staying at his house. In or around December 1995, Woods returned to Las Vegas from out of state. Woods contacted Kieren, although they had had a falling out a year or so prior to that over money that Kieren allegedly owed Woods. They arranged for Woods to also rent space in Kieren’s house, with Woods sleeping on Kieren’s sofa.[4]

         As of the first part of March 1996, Broyles was planning to move out or was in the process of moving out of Kieren’s place. However, as of the date of the incident he was not fully moved out. There was friction at that time over money between Kieren and Woods; and there was friction separately between Kieren and Broyles, for one reason or another.[5]

         On the evening of March 6, 1996, Woods and Broyles, who had been working together on a painting job, were in and out of Kieren’s house. Kieren was there. Woods and Broyles eventually picked up Kristi Telles, who was dating Broyles, after she got off work and headed back to Kieren’s house.[6]

         After returning to Kieren’s house, Woods, Broyles, and Telles sat around in the garage with the garage outer door closed or nearly fully closed, drinking and also smoking some marijuana.[7]

         Kieren came into the garage from the house a number of times. He was having words with Broyles about one household complaint or another, such as the three allegedly drinking all of his beer, eating all of his pizza, and not cleaning up after themselves. He would complain about one thing or another and then go back into the house.[8]

         At some point, Broyles slipped away into the house without Michael Woods noticing. Woods testified that he “heard something sound like a thump” and noticed that Broyles was no longer in the garage.[9]

         Woods went into the house looking for Broyles, either with Telles or followed shortly thereafter by Telles. Inside, the only lights showing were the aquarium lights and the light coming from underneath Kieren’s closed master bedroom door. Woods listened through the door but could not hear anything. Woods knocked but got no response. Woods grabbed the doorknob to enter. When Woods was at the door and before he did anything further, Telles went back to the garage.[10]

         When Woods opened the bedroom door, he saw the closet sliding doors laying on the floor with glass and blood on the carpet. A trail of blood led into the bathroom. When Woods entered the bathroom, he saw Broyles standing over the clothed Kieren in the empty tub. According to Woods’ testimony, the left-handed Broyles was holding Kieren’s ponytail with his right hand and had his left hand over the top of the blade of a knife which was in Kieren’s hand. Kieren kept the knife on the window ledge in the shower. Although Woods maintained that Kieren’s hand was on the handle of the knife, he testified that Broyles had the knife pushed up against the left side of Kieren’s face, with his hand over the top of the knife. Broyles further had his head up against the left side of Kieren’s face.[11]

         Notwithstanding his testimony that it was Kieren’s hand on the handle of the knife, Woods testified that he went up to Broyles and said: “David, what the f are you doing?” Woods acknowledged on cross-examination that he stated to the police in his initial written statement that he thought Broyles was going to kill Kieren when he first saw them in the bathroom.[12]

         Broyles then bit Kieren’s ear off, pulled it off, and spit it out in the tub. Kieren let go of the knife, and Broyles took full control of the knife.[13]

         Woods testified that Broyles then said to him: “Get the f away from me, I will stab you too.”[14]

         Woods tried to calm Broyles down, defuse the situation, and get the knife from him. According to Woods, Broyles stated that Woods did not understand, that Kieren had been going for his gun, and that “[n]obody is leaving here alive.” He would not let go of the knife, saying that “no, he was going to kill me.” Woods ultimately was able to get the knife from Broyles, with Broyles asking Woods to hold Kieren down and give him a couple of minutes to get out of the house. Woods took hold of Kieren’s ponytail in place of Broyles, and Broyles released the knife to him. Broyles then left the bathroom, and Woods heard the bedroom door close behind him.[15]

         According to Kieren’s testimony, the events that occurred in his room up to that point, including those that occurred prior to Woods arriving, transpired as follows.

         According to Kieren, Broyles came into his room, and the two had a tense verbal exchange. Broyles then grabbed him by his hair and struck him repeatedly with his drink glass, while kneeing him and calling him a “punk” and a “bitch.” Kieren struggled to break free, and the two men crashed through the closet doors. Broyles continued hitting him with the glass three or four more times until the glass started to shatter. Kieren testified that from this point “it is like a strobe light going on and off” and that “I remember bits and pieces of it.” The struggle carried on into the bathroom, where Broyles struck Kieren several times in the head with a cologne bottle until the bottle broke, with Kieren recalling that he could smell the cologne after the bottle broke.[16]

         According to Kieren, he fell back into the tub, and Broyles continued to attack him, holding him by the hair and calling him names throughout. Kieren was unable to get any leverage to push his way back out of the tub. Broyles told him that he was going to bite his ear off, and then he did so, spitting Kieren’s ear back at him. Broyles then reached up and grabbed Kieren’s knife from the window ledge and started thumping him on the head with it. Broyles then “took a hold” of Kieren’s nose with his mouth, at which point Woods walked in.[17]

         According to Kieren, Woods said to Broyles: “What the f are you doing?” Broyles responded that he was sick of Kieren’s mouth, that he was done with him, and that he was going to kill Kieren. Woods asked for the knife and then tried to grab Broyles’ hand. Broyles jerked his hand away and held the knife up against Kieren’s throat. Kieren held his hands up to protect himself, and the knife would cut his hand every time that Woods tried to grab it. Similar to Woods’ account, Woods ultimately was able to get Broyles to give him the knife, and Broyles asked Woods to hold Kieren down until Broyles left the room. According to Kieren, Broyles leaned down to him, said “now you are going to die, ” and ran from the room.[18]

         According to Woods’ testimony, after Broyles left the room, Kieren immediately tried to get out of the tub. Woods told him to stay in the tub. Kieren said: “No, you don’t understand, Mike. He bit my f___in ear off. I am going to kill him.” Kieren got up out of the tub. Woods still had the knife that he had obtained from Broyles in his hand. Kieren pushed past him and said: “I am going to kill him. He bit my f___ing ear off.” Woods urged Kieren to let the police handle the situation. Kieren went over to his desk, retrieved his Ruger 9mm handgun, chambered a round, and put the gun to Woods’ forehead. He told Woods, who still had the knife, to get back.[19]

         According to Woods, Kieren then exited the bedroom while keeping the gun pointed at him. He then started “sweeping the hall, ” meaning that he kept the weapon in front of him sweeping the area in “combat mode” from a military stance. He did so while keeping an eye on Woods, who kept pace with him about three to four feet away, with the knife still in his hand. Kieren moved down the hallway, keeping his back to the wall and his weapon in front of him, pointing alternately at Woods and then down the hallway.[20]

         Woods testified that Kieren swung open the door to Broyles’ bedroom and swept the bedroom with his weapon in combat mode. He similarly swept the hall bathroom, the living or dining room, and the kitchen. The dogs were standing at the sliding glass patio door, so it did not appear that anyone had gone that way. Throughout, Kieren would sweep the weapon back to Woods, who still had the knife in his hand.[21]

         Woods testified that Kieren then headed for the door to the garage, which opened inward into the house. Woods kept pace with him, three to four feet away, with the knife still in his hand, although he maintained at trial that he did not realize at the time that he still was holding the knife. Woods urged Kieren again to let the police handle the situation and “don’t do this.” Kieren then swung the door open with his left hand while holding the gun in his right.[22]

         According to Woods’ testimony, Broyles was standing in the garage reaching for the switch that opened the garage outer door. Kieren raised his weapon, and Broyles stepped back with his arms raised above his head saying “no, don’t shoot . . . .” Kieren then fired, with the shots being “real rapid.” Woods believed that the first shot hit Broyles in the shoulder, turning him. Another shot hit him in the hip, and he started going down, with the door from the house to the garage swinging shut at the same time. According to Woods, who was inside the house, he was able to tell that Broyles was going to the ground because Kieren’s shots were following him to the ground as he kept firing. Kieren kept firing until the door swung closed to about an inch from being fully shut.[23]

         Woods testified that Kieren then spun toward him, pointing the gun directly at him again. Kieren then flipped the door open again. Broyles was lying face down on the concrete, with his head laying on the threshold. Woods continued:

And David was laying down there. He spun down, put the gun down towards him point blank and pulling the trigger. He shot him four or five times.

         According to Woods, Kieren went “pow, pow, pow, pow, pow like that” and then turned around and pointed the gun at him again. Woods just stood there. Kieren walked around Woods into the kitchen with the gun pointed on him and called 911.[24]

         According to Kristi Telles’ testimony, Broyles came back to the garage covered in blood but with no injuries that were apparent to her on that quick view. He said to her: “Get your stuff. Let’s get out of here.” Kieren of course was inside the house at the time of any such statement. Telles testified that Kieren opened the inside garage door, came into the garage, pointed the gun at them, “and just started firing.” Broyles was standing “just a couple of feet” from the door. The outer garage door was closed. Telles testified that Broyles said “no, don’t” before Kieren fired. According to Telles, Broyles fell to the ground, Kieren stood there and stared at him “for about a second, ” and he “then started firing again at him when he was laying down on the ground.” Telles ran across the garage trying to get away from the line of fire. She testified that “I guess when he ran out of bullets, ” Kieren stood there staring at Broyles. Michael Woods then entered the garage.[25]

         According to Kieren’s testimony, after Broyles left the master bedroom, he tried to get out of the tub a couple of times, but Woods slammed him back down each time. Woods was telling him that he needed to let Broyles cool down and that if he got up, he “would end up dead.” Kieren was scared. He did not want to be caught in the tub, because he believed that Broyles would come back. He had heard the home’s alarm system beep when Broyles had gone out through the door leading into the garage.[26]

         Kieren testified that he ultimately was able to get up, and he then “took off running” and grabbed his handgun. He could hear things being moved in the garage “like the weights, ” and he knew that Broyles kept some camping gear out there. He assumed that Broyles was going through that gear. At that point, Woods was standing behind Kieren with the knife. Kieren turned and looked at him, and he then took off running. He stated that “I was trying to get distance between” Woods and Broyles. Kieren ran to the garage.[27]

         According to Kieren, when he opened the inside garage door, Broyles was by his weight bench digging in his denim jacket and a bag. Kieren stepped into the garage onto the step between the house and garage. Broyles looked up, said “what’s up? You want some more?” and started running at him. Broyles was starting to pull something black out of a jacket or a shirt. Kieren knew that Broyles kept several hunting knives in the garage, and he believed that Broyles was pulling a knife “or something.” He felt like he was in danger. According to Kieren, Kristi Telles was saying to Broyles: “David, David, don’t do it.”[28]

         Kieren testified that he “just started back pedaling and shooting.” He testified that he shot until the door closed, shooting “one through the door or something.” He stated that “I could have swore it was like three or four” shots. Kieren maintained that one of the bullets “spun him around like a circle and then I kept firing until the door closed.” According to Kieren, he did not see Broyles hit the ground. When either Kieren or Woods opened the door again, Broyles was laying on the floor with his head “real close to the door.”[29]

         According to Kieren, Woods was saying to him: “What the f___ did you just do?” Woods pushed by him out into the garage. Kieren went to the kitchen and called 911.[30]

         According to Woods’ testimony, after the shooting, when he went into the garage, he told Telles: “Get the f___ out of the house. No. one is leaving here alive.” She just stood there. He hit the door switch to the outer garage door “because I couldn’t understand why the garage door was still down.” Telles still was standing there as the door started going up, perhaps in shock, and he told her again: “Get the f___ out of here now.” Telles then turned and ran out of the garage. According to Woods, Kieren pointed the gun at Telles as she was going out under the door. Woods turned around to face Kieren, with the knife still in his hand, and Kieren stepped back and pointed the gun at him.[31]

         Telles testified that she ran next door after Woods told her to leave and opened the garage door. According to her testimony, she saw Kieren going in and out of the house as she was running. She rang the neighbor’s doorbell frantically. When a woman answered, she told her what happened and asked her to call 911. She stayed at the house thereafter. She had been grazed by a bullet on her left leg.[32]

         Woods testified that after Telles left and Kieren had the gun pointed at him, he then pointed it down at Broyles again. Woods thought that Kieren was going to shoot Broyles again. Kieren was saying something on the phone about it being self-defense. Woods, who still had the knife in his hand, said “you lying son-of-a-bitch” and shoved Kieren hard back towards the kitchen. They shoved back and forth, with Kieren saying that it was self-defense and Woods saying, “you didn’t have to shoot David like that, you son of a bitch.”[33]

         Although it would have seemed from Woods’ testimony that the above exchange occurred in the garage, Woods testified that he then opened the door, stepped back out into the garage, and grabbed Broyles and turned him over. Broyles was so close to the door that when the inside garage door kept closing back, it would strike Broyles in the head.[34]

         Woods testified that it was at this point that he realized that he still had the knife in his hand, and he threw it to the other side of the garage.[35]

         After rolling Broyles over, Woods attempted CPR, but there did not appear to be much that Woods could do for him. According to Woods, Broyles “gasped for air and turned his head and gasped again.” Kieren looked out again and pointed the weapon at Woods’ head and then at Broyles again. Woods grabbed Broyles by the hand and pleaded with him “please, don’t die David, ” stating: “You are not going to die in this f___ing pig’s house.”[36]

         Woods then dragged Broyles out of the garage – away from the scene of the shooting – out onto the driveway.[37]

         James Hawes lived three houses west of Kieren’s house. He was getting his mail from his box in the neighborhood’s cluster mailboxes a couple of homes away from Kieren’s house when he heard three gunshots. He testified that one of the shots “whizzed” by his ear. He jumped to the ground, then ran to his house to get his cell phone, and then called 911 while standing behind his jeep. He looked toward Kieren’s house, as he believed that he had heard the sound of the shots come from there. By this point, the garage door was open, and a man was standing over a body lying in the garage. Hawes had seen a figure run from the house before that. Hawes then saw Kieren come to the inside garage door, and the man said: “You hunted him down and shot him like a dog, you mother f___er.” The man then ran toward Kieren and they began fighting in the door frame to the house. Kieren left and then the man dragged the body out into the street. Hawes testified that he was thirty yards from the house and that the body was ten feet from the garage door when the body was inside the garage. He did not see anything on the floor of the garage from his vantage point.[38]

         Ronald Allen lived “kitty-corner” from Kieren’s house. Allen was awakened by a neighbor knocking on his door and ringing his doorbell. When he went outside after answering the door, he saw a body lying on the ground with a man who he believed to be called “Mike” holding the body. The man appeared to be “very scared, agitated, crying, ” “real nervous, ” and “shaking.” Allen asked him what happened, and he said: “Dennis shot David. Dennis killed David.” Although Allen responded affirmatively that he was awakened by the knocking neighbor, he also testified that he thought that he heard some shots, but he thought that they possibly were coming from a nearby outdoor shooting range.[39]

         There was no testimony by any of the neighbor witnesses who testified at trial of hearing specifically multiple gunshots followed by a sustained pause and then more multiple gunshots coming from Kieren’s house.

         Forensic examination of the scene and physical evidence reflected the following.

         Consistent with the testimony as to an extremely violent fight in Kieren’s master bedroom, there was apparent human blood throughout the carpet; on top of the papers on the work desk in the office area in the corner; on top of the sliding closet doors that had been knocked down; on the doorway leading into the master bath, as if someone had been bounced into it; smeared over the shower stall, tub area and the window sill; and also on the toilet.[40]

         Consistent with Kieren’s testimony that Broyles hit him repeatedly in the head with a drink glass during the violent struggle, there were shards of broken glass apparently from a drinking glass throughout the master bedroom, even on the bed, intermixed with blood.[41]

         Consistent with Kieren’s testimony that Broyles hit him repeatedly in the head with a cologne bottle, there were shards of glass in the master bath from an apparent cologne or aftershave bottle with apparent blood mixed in, with the detective testifying that the bottle “really broke apart.”[42]

         An empty sheath for a knife was found lying on the rug in the master bath.[43]

         An empty holster with a magazine with a few cartridges for Kieren’s 9mm Ruger was found under the sliding closet doors on the floor.[44]

         Kieren was examined at the trauma center at University Medical Center a short time after the incident. Examination reflected that the top third of his right ear had been torn or cut off. He additionally had multiple lacerations on his forehead and scalp, and he had superficial lacerations on his hands from a sharp instrument. The trauma center physician could not provide an opinion at the time of trial -- relying upon his notes rather than an independent recollection of the examination – as to whether or not these injuries were consistent with Kieren having been hit on the head with both a drinking glass and a cologne bottle that shattered and attempting to shield himself from having a knife held up against him.[45]

         In Broyles’ bedroom, there was blood on the door entering the room. The police found a gun box for a .45 caliber Para-Ordnance semiautomatic handgun, without the gun, laying open on the futon, with a few spatterings of apparent blood on the box, as well as an empty leather holster. It appeared that someone who had been involved in the struggle in the master bedroom had gone into Broyles’ bedroom and transferred some blood to that location. The police did not find any live .45 rounds there.[46]

         The parties stipulated that the 9mm Ruger was registered to Kieren and that the .45 Para-Ordnance was registered to Broyles.[47]

         The court can find an explicit reference in the trial testimony to only seven spent shell casings being recovered from inside the house in the general vicinity of the door to the garage. The State referred to nine casings in its closing, perhaps per the exhibits. One bullet had gone through the doorknob to the garage door. One bullet jacket (the usually copper cladding enveloping an otherwise usually lead bullet) was found in the garage. The detective testified that the jacketing often would become detached when a bullet struck an object. Two exit holes were found in the garage door after the detectives had it lowered, which potentially would explain why James Hawes heard a round “whiz” by his ear even though the testimony was that the garage door was down when the shots were fired.[48]

         On the floor of the garage, the police found Broyles’ .45 Para-Ordnance handgun, an ammo box with .45 ammunition, and nine unfired .45 cartridges on the floor by the gun. These items were by the threshold of the inner garage door leading to the house. The .45 was holstered and unloaded, and there was no magazine either in the weapon or nearby on the floor. Woods and Telles each testified that they did not see Broyles’ .45 or the .45 ammunition in the garage prior to the shooting. The State postulated during closing that Kieren may have placed the .45 there after the shooting and before the police arrived. The State presented no evidence tending to establish that he did so, however. If Kieren had done so, he would have been placing a holstered gun in the garage.[49]

         As noted, the .45 Para-Ordnance was unloaded and there was no magazine nearby when the police investigated the scene. However, the police found a loaded .45 magazine for the gun in Broyles’ denim jacket that apparently also had been dragged out onto the driveway when Woods dragged Broyles out of the garage. There was no evidence, or suggestion made, that Kieren placed the loaded .45 magazine for the Para-Ordnance in Broyles’ jacket pocket out in the driveway.[50]

         The police also found a knife in the garage. The State maintained that this knife was the knife that was in Woods’ hand until after the shooting, at least according to Woods’ testimony that he had a knife up to that point.[51]

         Broyles was hit with a total of seven bullets, five of which were recovered from his body and two of which produced exit wounds. The medical examiner could not identify with any medical certainty the order in which the bullets struck Broyles. In no given order, he was struck once in the front left shoulder, twice in the left upper arm passing through into the upper body, once through and through in the left hip, once in the back of the left shoulder over the shoulder blade, once in the back of the right shoulder medial to the shoulder blade, and once through and through in the front of the right thigh. The bullet that hit the front of the left shoulder and the two that hit initially the left upper arm all created considerable damage to the left lung, diaphragm, liver, stomach and colon. The two bullets that hit the back left and right shoulder respectively both struck the heart and each one struck a lung.[52]

         The shots struck the body at “roughly the same time, ” but the medical examiner was contrasting that measure to longer periods of hours or days. When asked whether the wound tracks were consistent with Broyles being shot while laying horizontal, the medical examiner responded: “I can’t say for sure, but I cannot rule it out. I would have to say that it is possible.” He acknowledged that there would be other scenarios that would create the wound tracks, stating that “I would not want to get real dogmatic about any one of them.” He testified that there were no powder burns reflecting a contact or close-range shot, but he would have to examine the clothing being worn and the characteristics of the weapon and ammunition to provide a definitive opinion in that regard. The medical examiner’s testimony thus did not establish with any degree of medical certainty the sequence of the shots, the time interval between shots, the range from which shots were fired, or the position of Broyles’ body when he was struck by any of the various shots.[53]

         The parties stipulated that the bullets recovered from Broyles’ body and the 9 mm casings recovered at the scene came from Kieren’s Ruger.[54]

         The State suggested in closing argument that the fact that all of the 9 mm casings were recovered inside the house rather than in the garage contradicted Kieren’s testimony that he had stepped onto the threshold step of the garage before then firing as he backed away from Broyles.[55] However, the State presented no forensic firearms examiner expert testimony tending to support such an inference.[56]

         The State further presented no evidence identifying the source of the blood on the gun box for Broyles’ .45 Para-Ordnance in his bedroom. Of course, such evidence would have been inconclusive given that, even if Broyles was the one to retrieve the .45 from the box, he could have transferred Kieren’s blood to the box that had been transferred to him during the violent fight.

         The physical evidence, specifically blood pooling, tended to establish that Broyles was lying on the threshold of the inner garage door leading into the house.[57]While Woods’ testimony has Broyles stepping back before Kieren started firing, both Woods’ later testimony and the physical evidence has Broyles in close proximity to the door when he fell. The neighbor Hawes’ recollection that Broyles’ body was ten feet from the inside garage door was not supported by the physical evidence.

         A jailhouse informant, Andrew Rutberg, testified that Kieren said to him that he was claiming self-defense “but in effect what happened is he had a fight with someone.” According to Rutberg, Kieren said that someone had bitten his ear off, and he chased them out through the garage and shot them. Kieren stated that he did this “[b]ecause he was angry his ear was bitten off.” During cross, it was revealed that Rutberg had worked either for or with Kieren. Rutberg denied that Kieren had fired him for impropriety, and he denied that Kieren had aided a criminal investigation against him. Rutberg previously had written the district attorney’s office stating that he did not recall anything. He stated that he wrote the letter because he did not want to be transported to the county jail again.[58]

         Cheryl Ogletree was called by the defense. Ogletree and Kieren had a child together. Her testimony began in a disjointed fashion because defense counsel and the witness referred to Broyles when they clearly meant Woods. Ogletree knew Woods through Kieren. According to Ogletree, Woods visited her after the shooting shortly after Easter 1996. ...


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