Monday, December 30, 2013

2013 in Review- Death row appeal: Chris Collings is sorry for killing Rowan Ford, so don't kill him

(From November 26, 2013)
(Warning: The following post contains graphic material.)

The first step in the efforts by Chris Collings to avoid the death penalty for the rape and murder of nine-year-old Triway Elementary student Rowan Ford are scheduled for a January 8 hearing before the Missouri Supreme Court.

In documents filed with the Supreme Court, Collings' attorneys claim that he should either be given a new trial, be sentenced to second degree murder instead of first degree, or resentenced to life without the possibility of parole.

The attorneys cited a number of reasons for the requests including the following:

-Collings did not confess voluntarily. "Law enforcement officers exploited the close friendship Collings had with Wheaton Police Chief Clinton Clark." The petition also says law enforcement took advantage of Collings' fear of vigilante justice.

-Clark kept Collings talking even though he was aware Collings had an attorney.

-The prosecution failed to prove an element of first degree murder, that Collings had "coolly reflected" before killing Rowan Ford. Testimony indicated that Collings "freaked out" when he realized that Rowan had recognized him after he raped her.

-The judge should not have allowed the prosecution to show "excessively gruesome and prejudicial" photos of Rowan Ford.

-The judge should have declared a mistrial after the prosecutor simulated the strangulation of Rowan Ford in front of the jury.

-Chris Collings has shown "deep remorse" and "accepted responsibility" for the murder.

The facts of the case were laid out at the beginning of the brief and are provided below:

 On November 2, 2007, nine-year-old Rowan Ford lived with her mother, Colleen Munson, and her step-father, David Spears, at 777 Grove Street, in Stella, Newton County, Missouri.  Spears was friends with Christopher Collings and Nathan Mahurin.  Collings lived in a camper in Wheaton, in Barry County. 
Friday, November 2nd 
At about 6:00 p.m., Mahurin drove Collings and Spears to Spears’ house. On the way, they bought two or three six-packs of Smirnoff Ice. At Spears’ house, they drank and played pool in the basement.   
At 8:30 p.m., Colleen went to work, leaving Spears to babysit Rowan.
Later, Collings and Mahurin left to buy more alcohol. Collings asked Mahurin to drive him home. They talked Spears into coming along and leaving Rowan by herself. On the way, they stopped to buy another six-pack of Smirnoff Ice. They arrived at Collings’ camper at about 11 p.m. and talked, drank, and smoked marijuana.
After 30-60 minutes, Mahurin needed to get home. Because they were drunk, he and Spears drove back roads slowly. Mahurin left Collings’ camper at about 1 or 11:30 p.m. and dropped Spears off at 777 Grove. The drive took 10-20 minutes.
Saturday, November 3rd 
At about 9:00 a.m., Colleen came home and could not find Rowan. Spears told her that Rowan was at a friend’s house but could not say which friend.  

Colleen walked around Stella looking for her daughter and then drove around with Spears. She wanted Spears to call the police, but he would not, insisting that Rowan was at a friend’s house. Finally, at about 5:00 or 6:00 p.m., Spears called the Newton County Sheriff’s Department to report Rowan missing. Patrolmen searched for Rowan, and the Highway Patrol tried to locate her friends.  Sheriff deputies interviewed Spears and Mahurin for several hours.  Spears, Mahurin, and Collings were considered suspects or “persons of interest,” since they were the last ones to have seen Rowan.

Sunday, November 4th 
On Sunday, law enforcement teams searched the area.  Newton County deputies spoke with Collings, who was concerned, cooperative, and polite.
He stated that he, Spears, and Mahurin were drinking and playing pool at Spears’ house. At about 10:30 p.m., they left Rowan, bought more alcohol, and went to Collings’ camper. They had been drinking heavily all evening. Spears and Mahurin left sometime after midnight, and Collings went to bed.     
Later, Collings visited Munson.  Collings had lived at 777 Grove Street with Munson, Spears, and Rowan Ford for several months, but had recently moved out. He asked Munson how the search was going, and he offered to help find Rowan. Collings visited Munson again the next day.

Monday, November 5th

The F.B.I. joined the investigation on November 5th. They set up a command post, with phone lines so people could call in tips. Searches were conducted in and around Stella. Two Newton County deputies went to Collings’ workplace and asked him to answer more questions. Collings agreed, drove to the Sheriff’s Department, and relayed largely the same account as the day before. Collings agreed to take a Computer Voice Stress Analyzer (CVSA) test. An officer asked Collings about Spears and the events of Friday night.   He then read Collings his rights; Collings understood and signed the form.   
After the test, Collings again spoke with the two deputies. He insisted he knew nothing about Rowan’s disappearance. He agreed to answer questions again if needed and offered to help in the search.  Collings had a long-standing, close relationship with the Wheaton Chief of Police, Clinton Clark. Collings had known Clark since he was a young boy.  

Clark was a good friend of Collings’ adoptive mother, Betty, and also knew his adoptive father, Clarence Collings came to Clark for help and advice, and for solace when Betty died. After Collings moved to Arkansas, he made sure to come visit Clark each time he came back home. Collings trusted Clark.
Late Monday afternoon, Clark was on patrol when Collings flagged him down. Collings told Clark that Rowan was missing and that he had been at the Sheriff’s Office all day helping find her.  Collings was not acting normal and seemed excited. Clark encouraged him to continue to help the investigation. 

Afterwards, Clark called the Newton County Sheriff’s Office and the F.B.I. to inform them that Collings had contacted him.  He told them he and Collings were long-standing friends and had good rapport. He believed Collings knew something about Rowan’s disappearance, and he offered his help in the investigation.  Deputy Jennings encouraged Clark to keep working with Collings, and in turn, Clark called Jennings throughout the week to relay the contacts he had with Collings.

Meanwhile, Deputy Jennings had been interviewing David Spears with the help of Mark Bridges, the Newton County coroner.Bridges had been Spears’ past employer. They had known each other quite awhile and had good rapport.

On Monday evening, two F.B.I. agents went to 777 Grove.  Collings spoke with one of the agents and gave an account consistent with what he had already told investigators. Collings suggested places to search for Rowan.

Tuesday, November 6th

On Tuesday, F.B.I. agents Ramana and Tarpley came to Clark’s office. They encouraged Clark to help in the investigation. Clark considered this a request for mutual aid from one law enforcement agency to another. 
Late that afternoon, Collings visited Clark. He told Clark that when he was at work, F.B.I. agents took him to Newton County to answer more questions, and he spent most of the day there.  Collings could not make eye contact and kept his head down. They spoke just a few minutes. Clark believed Collings had 
something on his mind.

Wednesday, November 7th 

At 9:15 a.m., officers again went to Collings’ workplace, and Collings agreed to answer more questions. He agreed to DNA testing, allowed officers to search a safe found in the basement of 777 Grove, and consented to a search of his property and buildings. 

Collings discussed the same matters previously discussed.  Additionally, the officers asked about information they had received that Spears was trying to establish an alibi for Friday evening.  Collings refuted the alibi, 
denying that he had run out of gas on Friday night. He admitted that he, Spears, and Mahurin smoked a “hog’s leg,” a really large marijuana cigarette, at his camper on Friday evening.  (Tr.3953).  He told the officers that he could not have beaten Spears and Mahurin back to Spears’ house on Friday evening. 
Collings took a polygraph test. At the end of the test, he refused to speak to the examiner further. 

Two agents questioned Collings from 2:45 to 5:12 p.m.  Collings told them that if they insinuated he was involved in Rowan’s disappearance, he would stop talking to them.  Collings left soon afterwards, at 5:18 p.m.

Very upset, Collings visited Clark. He stated that the officers needed to back off and that, if they continued to accuse him, he would not speak with them and would get an attorney.

Collings said he told them that if he had anything to say, he would say it to Clark.  Clark told Collings it was his constitutional right to get an attorney, but he also urged Collings to keep helping find Rowan. He told 
Collings it would not be in his best interest to stop cooperating with law enforcement.  Collings said he thought he should get a lawyer.  Clark then read Collings his rights.

Collings agreed to speak and signed the form at 6:18 p.m. Wednesday evening.  Collings started crying and stated he had always loved Rowan and would not hurt her. At that point, someone came into the office. Collings abruptly left, stating he needed to give his father his medication.
Afterwards, Clark called the F.B.I.  He reported that Collings was near a breaking point and suggested that the agents give Collings a day off from questioning. He would try to talk to Collings and get him to disclose what happened.
Meanwhile, a field search was conducted on Collings’ property.  The two-acre property contained abandoned vehicles, junk, and trailers. No evidence was seized.

Thursday, November 8th 

On Thursday, Clark met with F.B.I. agents Stinnett and Tarpley.  
They talked about Clark’s unique relationship with Collings and the dynamics of Collings’ family. Clark thought Collings knew something about Rowan’s disappearance.  

 The missing piece of the puzzle was locating Rowan’s body. Once they found the body, the agents wanted Clark to speak with Collings. If Collings was going to confess, it would be to 

Friday, November 9th 

Rowan’s body was finally found in a sinkhole/cave called Fox Cave.  The cave was 20-30 feet from the road in a wooded area.  It was 10-15 feet deep.  Rowan was naked except for a shirt and a sock.  
There appeared to be blood at her vaginal area and ligature marks on her neck.
Clark heard on the news that Rowan’s body had been found. He learned that Collings had come into his office looking for him. At 1:30 p.m., he went looking for Collings.  At 2:08 p.m., Collings called Clark and asked if law enforcement officers were following him in a gray van..  Clark told him he had not heard of any such surveillance. Collings was shaken and feared for his safety. He had driven all over trying to lose the van and was finally able to do so.  Clark told him to go directly to his office.  But instead, Collings suggested Clark stay where he was, and he would join him. Clark hung up and immediately called F.B.I. Agent Tarpley to advise that he had contacted Collings.

When Collings arrived a few minutes later, he and Clark spoke about the gray van.  Clark told Collings they needed to talk, and he should come to Clark’s office. Collings agreed, and they drove together in Clark’s police car. On the way, they discussed the van.  Collings was worried that people might take matters into their own hands. Knowing that Collings was upset, Clark told him that he did not work 24 hours a day and could not guarantee his safety all the time.He told him that he would protect him to the extent he could. 
At the office, Clark read Collings his rights.  Collings was worried about the fact he had been followed. He signed a waiver form, noting the time as 3 p.m.
Collings cried and started to talk, but someone came into the office. Collings would not speak with so many people around. Clark asked if
 Collings wanted to go somewhere else.  Collings agreed to go to the Muncie Bridge, a few miles out of town. 
Clark drove to the Muncie Bridge with Collings in the front passenger seat.  Collings was not under arrest. On the way, at 2:30 p.m., Clark phoned the Newton and Barry County Sheriff Departments to advise that 
he would be speaking to Collings at the Muncie Bridge.

Clark and Collings sat on a slope near the bridge.  Collings relayed largely the same story he had previously told law enforcement, up to the point when Spears and Mahurin left his camper. From that point onward, however, Collings relayed a different story.  Crying, Collings confessed to raping and killing Rowan. 

At 2:25 p.m., driving back to his office, Clark called to tell the city clerk to empty the building. He called other law enforcement officers to tell them to meet him and Collings at his office. There, Collings recounted his statement in front of six law enforcement officers. He was very upset.  Collings was handcuffed and taken to the Barry County Sheriff’s Department.  

  At 5:29 p.m., he was read his Miranda rights and gave a videotaped statement.  He acknowledged that his 
rights had been read to him several times.

The Confession 

Collings explained that, before they left his camper, Mahurin and Spears stated they were going to take back roads home so they could smoke more marijuana and finish the alcohol, while also avoiding the police. Collings probably had five six-packs of Smirnoff Ice, and Spears and Mahurin also drank whiskey 
and tequila. Collings knew that if he hurried, he could beat Spears home. He felt strange.. He did not know why he drove to Spears’ house.  He was “really, really fucked up” and did not intend to take 

Collings drove the direct route to Spears’ house.  He walked through the house, looking in a few rooms.   
He went into Rowan’s room and saw her on the floor under a blanket. He picked her up and carried her to the truck.

Collings probably started to think about having sex with Rowan on the way 
home. At his camper, he carried Rowan, still sleeping, inside and 
put her on the bed.   He “used his finger on her a little” and then had vaginal intercourse with her for a few minutes, possibly ejaculating.  Rowan awoke when Collings penetrated her, and she struggled.  Intercourse lasted possibly four or five minutes.   Collings intended to return Rowan to her bed.  He led Rowan 
outside, facing away from him so that she could not see his face.  He had made sure to keep the lights off in the camper and did not speak so Rowan would not recognize his voice. But outside, in the light of 
the moon, Rowan looked back and saw Collings.  Collings knew that she had recognized him, and he “freaked out.” He saw a coil of cord in the bed of the old pickup truck next to him.   He took the cord, looped it around Rowan’s neck, and pulled it tight for a few minutes. She struggled a little and fell to the ground. Collings went to the ground with her and held tight until she stopped moving.

 Here, Collings had to stop to compose himself during his videotaped confession.  Collings knew he needed to hide Rowan’s body.  He put her in the pickup truck’s bed. Initially, he planned to put her in a creek, but he did not want her to be discovered quickly, so he left her in Fox Cave.
Back at his camper, Collings turned on the light and discovered blood on his mattress and clothes.  In a woodstove, he burned Rowan’s pants, underpants, his clothes, and the rope  He took the mattress 
outside, rolled it up, and put it in a 55-gallon drum with some old carpet to help it burn.  He moved the drum into the calf barn so the fire would not be so noticeable. Collings denied that Spears or anyone else was involved in Rowan’s death.  He vouched that he gave his statement of his own free will, without threats or promises.  Collings noted that he had been “bawling like a baby all afternoon.” . He felt guilty and remorseful. 

Second Videotaped Statement 

While Collings was giving his first videotaped statement on Friday afternoon, Deputy Jennings was re-interviewing Spears with Mark Bridges at the Newton County Sheriff Department.  Because of statements Spears made, the officers questioned Collings again at 8:02 p.m. Collings was told that Spears confessed to also having sex with Rowan, being there when Collings killed her, and helping dispose of the body. 
Spears stated that after Mahurin took him home, he called his mother, had her bring her Suburban to the house, and he took the Suburban over to Collings’ camper.  But Collings repeatedly insisted that Spears had nothing to do with Rowan’s death.

November 9th Search 

Collings’ property was searched for a second time that evening.  In the camper, officers found a twin box spring but no mattress.Outside the camper was a silver pick-up truck, and in the bed was a rusted, empty metal spool.  A piece of string or twine was found on the driver’s side floor.  In the calf barn was a 55-gallon drum, and in the yard was a 55-gallon drum converted into a woodstove.  A burn pile off into the trees contained an item appearing to be cord, but which, upon testing, was determined not to be.

Collings’ white pickup truck was thoroughly searched. A light-to-medium brown Caucasian head hair, about seven inches long, was found in the truck bed.  A partial DNA profile was developed and found to be 
consistent with Rowan’s DNA profile. The frequency of the partial profile in the Caucasian population was 1 in 328,700.   

Procedural History 
 On December 21, 2007, Collings was charged with one count of first-degree murder, one count of forcible rape, and one count of statutory rape.Venue was changed to Phelps County, and a jury was selected from Platte County.  The court severed the murder count from the rape counts.  

 Collings moved to suppress his statements and all evidence gained from the November 9th search of his property. Collings moved to admit the videotape of a November 14, 2007, conversation between Collings and Clark at the jail five days after Collings’ arrest.  He argued that the videotape showed the nature of his relationship with Clark and how Clark pressured him to forego his constitutional rights. The court refused to consider the videotape and denied the motion to suppress.

 At trial, Collings objected to testimony and evidence regarding the string seized taken from the burn pile; ashes/debris taken from the wood stove; the partial DNA profile; and the hair analysis, on the ground that they lacked true probative value, but the court overruled the objections..  Over objection, the State presented multiple gory photographs..  During closing argument, defense counsel objected that 
the State was personalizing its argument by acting out the strangulation. The jury found Collings guilty of first-degree murder.

Penalty Phase: State’s Evidence 
Colleen Munson testified that Rowan was a typical little girl who loved school, church, and biking.   The last time Munson saw Rowan, Rowan ran down the steps to give her a hug and a kiss before Munson left for work.
While Rowan was missing, Munson sat outside every day awaiting her return.   Rowan’s death devastated Munson.  Since Rowan’s death, Munson has been suicidal, was hospitalized several times, and remains under psychiatric care.She thinks of Rowan all the time.
Ariane Parsons, Rowan’s older sister by ten years, testified that Rowan was a bundle of love who cared about everybody, had beautiful brown eyes, and loved to ride her bike. Because Munson worked nights and slept during the day, Parsons took care of Rowan like a mother. They did everything together.  
 Parsons moved out the month after she turned eighteen, about five weeks before Rowan disappeared. She felt responsible for Rowan’s death because she was not there to protect her.   
From the time Parsons was fifteen, Collings sometimes acted inappropriately toward her.  Once, when Munson and Spears were at work, Collings called Parsons into the room to look at pornography. Other times, he rubbed against her, grabbed her butt, or touched her breasts.Collings would jokingly say something sexual and then say he was waiting for her to be a certain age.  Parsons repeatedly told Munson and Spears, but they said he was just joking.  She never saw Collings do anything inappropriate toward Rowan.  

Two teachers testified that Rowan was very sweet, always willing to do what she was told, and never in trouble. She loved school, worked hard, and read avidly.Rowan came from a poor family, and her home conditions were not good.  She sometimes came to school in the winter with no socks.  Rowan’s hair was always matted and ratty, and she sometimes had lice..The teachers believed she was the victim of parental neglect and reported it to DFS, but nothing changed.

When Rowan was missing, class was very difficult. The kids wrote poems and made cards for Rowan. Even now, the teachers missed Rowan and thought of her every day. One teacher became so depressed after her death he sought counseling.

The morning of Rowan’s funeral, the students planted a pink dogwood tree in her memory and under the tree, placed a memorial marker and a small angel kneeling in prayer.  The children wrote notes to Rowan and attached them to purple balloons which they released.   A bench 
with a plaque in Rowan’s memory was placed in the school library.

A neighbor testified that Rowan was quiet, kind, and sweet-natured.Rowan was best friend to her son Tyler. After Rowan’s death, Tyler insisted on sleeping with his mother. Another neighbor testified that Rowan 
was “a beautiful little girl” whom she would have liked to have had as a granddaughter.  

Penalty Phase:  Defense Evidence 

Collings’ biological parents were Dale Pickett and Barbara DiBello.  Starting at age fourteen, Barbara had eleven arrests for robbery, stealing, and assault and had issues with alcohol and drug abuse.   
Barbara was married three times and had six children before she married Dale.  Collings was their only child together. Collings was born with a large red knot on the left side of his head. Barbara
 massaged it, and it 
went away within a few weeks or months. They never knew what caused it.   Both Dale and Barbara liked to drink. Dale typically got drunk every day.  Barbara used drugs and alcohol, but stopped when she was 
pregnant with Collings, only to start again after his birth.She often got drunk and fought with Dale.  
Collings lived with Dale and Barbara for the first six months of his life.  (Tr.5967).  
Dale spent time with Collings and loved him.  But most of the care Collings received came from his half-brother Greg, age twelve, who was the only one responsible enough to take care of him.
In August, 1975, Dale shot a man in Arkansas and was charged with assault with intent to kill.  He pled guilty and received a 21-year prison sentence.  

With Dale in prison, Barbara worked several jobs and was not home much.  When Collings was around six months old, Barbara instructed Greg to clean the house and then left. She returned drunk and beat Greg repeatedly.  

 When she realized what she had done, she got a butcher knife from the kitchen and went after the man who had gotten her drunk. Barbara was arrested for drunk driving and making threats. Around this time, she was diagnosed with explosive personality disorder.The children were sent to a shelter home for a few days and then later to different foster homes.  

In September, 1975, Collings, then seven months old, was sent to live with Clarence and Betty Collings and their children Debbie, Robin, and Randy.  In February, 1976, when Collings was one, Debbie died 
in a car accident.

Collings’ difficulties started when he was very young. He got high fevers that caused him to have seizures.  
Throughout Collings’ childhood and adolescence, his birth parents were in and out 
of jail and prison, and in and out of his life.  Collings had supervised visits with his mother, until she was returned to custody on a parole violation. When Dale was paroled, he arranged a visit with Collings, then six years old.  Around this time, Collings was molested by his baby-sitter’s 13-year-old son. 4).  At age seven, he attempted suicide.

  When Collings was eight, Clarence and Betty adopted him.  Clarence was ambivalent about the adoption and worried that Dale would cause problems. But Betty thought that since Collings had been with them seven years, it would only be right to adopt him. She also thought the adoption would strengthen her marriage with Clarence.

When Collings was nine, Betty and Clarence separated, then divorced two years later.  Although custody was awarded to Betty, Collings was often shuttled back and forth between his parents.  Collings would 
get out of control and tear things up. He snuck out and stayed out 

At age fourteen or fifteen, Collings started using drugs and alcohol.  He was placed on house arrest for forging checks.  He was failing his classes, got suspended for six weeks for disruptive behavior, and had to repeat ninth grade.

At fifteen, Collings returned to his biological mother, Barbara, for two months. But the reunion was ill-fated, and eventually Barbara told Collings he could never come back. During this time, Barbara’s new husband sodomized Collings.
Collings was getting increasingly destructive, and his adoptive parents did not know what to do. He was admitted to a psychiatric hospital for almost two months.Collings was given the Axis I diagnoses of intermittent explosive disorder; dysthymia, major depression, recurrent; parent child problems; 
academic problems; and conduct disorder; solitary aggressive type.  His global assessment of functioning was 35 on a scale of 100, indicating major impairment.  He still wet his bed. Collings was prescribed 
medication, but he stopped taking them soon after leaving the hospital.  Although he was supposed to attend psychotherapy sessions, he only went to two.  A psychologist recommended that Collings not re-enter 
school until he was more stable emotionally, so Collings was schooled at home.  

At sixteen, Collings lived with Clarence, his adoptive father, but Clarence had remarried, and Collings did not get along with the new wife, Diane. He physically assaulted Diane and his step-sister Julie. He also assaulted an 11-year-old boy. 

Collings admitted the assaults and was given probation and house arrest.  He tried Job Corps but was discharged for disciplinary reasons. Collings was stuck at the maturity level of a fourteen or fifteen year old.   He violated his probation, was committed to DYS, and was sent to live in a juvenile detention center.  There, it was determined that Collings was not succeeding in school; was under-socialized; did not know how to get along with others; seemed lonely, scared, and confused; and had poor hygiene. 

At seventeen, still under DYS jurisdiction, Collings improved.  His reading level improved to an eighth grade level. It was recommended that he receive special education and one-on-one help.  In the next few years, he was placed in special education classes and a group home.

When Collings was eighteen, he lived with Dale, his biological father. Thereafter, Collings moved back and forth between Dale and his adoptive parents, Clarence and Betty. He admitted to sexually fondling his step-sister Julie when she was 11, and then again at 14 and 16. This behavior was consistent with someone who was sexually abused himself when younger.

At eighteen, Collings had his first child, Sarah. He would have three more children before having a vasectomy at age 28. 

 Over defense objection, the State asked Dale whether he believed in the death penalty and elicited that when Dale’s brother was murdered, Dale wanted to kill the person who murdered him.

For most of his adult life, Collings has had an alcohol problem.At times, he awoke in a ditch or someone’s yard without knowing how he got there.  

  At age 22, he obtained his GED and got a job.Collings also cared for Clarence in his ill health..  Clarence had a blood disorder that required him to get a shot once a week.  Collings and his adoptive brother took turns giving Clarence his shots. His adoptive mother, Betty, died two weeks before Rowan’s death. 

Dr. Wanda Draper, an expert in the field of human development, explained that Collings was handicapped developmentally by the lack of attachment with parental figures in the first six months of his life and beyond. 
Collings did not meet developmental expectations growing up.  His attachment problems continued when his adoptive family went through the trauma of losing a child, and then Collings suffered through his adoptive parents’ separation and adopted or, instead, returned to one of his birth parents.  

As further mitigation, the defense presented evidence regarding David Spears’ 
possible involvement in Rowan’s death.  Myrna Spears, David Spears’ mother, testified 
that on the night Rowan disappeared, her son David called her at about midnight, and in 
response, she drove her Suburban to his house.   David left in his pickup, returned a short while later, and took the Suburban, while she stayed at the house.  David returned by 7 a.m. Two dogs trained to alert at the scent of human remains alerted at the Suburban.  Both dogs separately alerted at the driver’s side door and the left rear quadrant.  Inside the Suburban, they alerted at the driver’s seat and rear cargo area. 

Verdict and Sentence 
The jury recommended death.  It found that the murder involved torture and, as a result, was outrageously and wantonly vile, horrible and inhuman, and that Rowan was killed as a result of her status as a potential witness/ The court imposed death. Notice of appeal was timely filed. 

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