Opinion
No. CV 03 0823717
February 13, 2008
Memorandum of Decision
The petitioner was tried and convicted of attempted murder and two counts of first degree assault in 1999. The court, Doherty, J., imposed a net effective sentence of 18 years. The Appellate Court affirmed the convictions and the Supreme Court denied certification. State v. Moore, 69 Conn.App. 117, 795 A.2d 563, cert. denied, 260 Conn. 941, 835 A.2d 59 (2002).
The petitioner has now filed a petition for habeas corpus relief.
The petitioner also filed appeals from a separate conviction for failure to appear for sentencing in the underlying case and from a motion to correct the sentence in the underlying case. State v. Moore, 98 Conn.App. 85, 908 A.2d 568, cert. denied, 280 Conn. 944, 912 A.2d 477 (2006); 281 Conn. 906, 916 A.2d 48 (2007). The claims in that appeal are not at issue here.
I
The Appellate Court found that the jury could reasonably have found the following facts. "In early 1997, the defendant sold two bulletproof vests, or the components thereof, to the victim, Glaister Gopie. Subsequently, the victim attempted, on many occasions, to return one of the vests for a refund. On the evening of May 18, 1997, the victim and his cousin, Andrew Mitchell, drove to Circular Avenue in Waterbury and parked on the street near a friend's home. The victim, coincidentally, parked directly outside the home of the defendant's half-sister, Crystal Bolton. Sometime earlier that day, the defendant and his girlfriend had driven to Circular Avenue to visit Bolton. As the defendant left Bolton's home and as the victim approached his friend's home, the two men encountered each other. The victim then confronted the defendant about the desired refund.
"From that point, the confrontation escalated into a fistfight, in which the victim was the apparent victor. After the fight ended, the defendant retrieved a loaded .38 caliber revolver from his car. The defendant then shot at the victim twice. The victim ran, fell to the ground shortly thereafter and was found by police lying face down with a single gunshot wound in the middle of his lower back. The victim told an officer that the defendant had shot him. Subsequently, the police arrested the defendant." State v. Moore, supra, 69 Conn.App. 118-19.
II
The second amended petition (petition) is in four counts. Counts one and two allege numerous claims of instructional error and prosecutorial misconduct. The respondent asserts as a defense in its return that the petitioner is procedurally defaulted for failing to raise these claims at trial and on appeal. The petitioner replies that ineffective assistance of trial and appellate counsel is the cause of any procedural default and that, since the issues have merit, the petitioner has been prejudiced. Counts three and four allege the ineffective assistance of trial and appellate counsel, respectively, with regard to the same specific claims of instructional error and prosecutorial misconduct. Because a meritorious ineffective assistance claim would be a valid basis for overcoming procedural default; see Carpenter v. Commissioner of Correction, 274 Conn. 834, 843-46, 878 A.2d 1088 (2005); and because counts one and two are otherwise identical to counts three and four, the merits of the petition turn wholly on whether the petitioner has proven his ineffective assistance of counsel claims. Accordingly, the court will proceed to analyze the ineffective assistance of counsel claims.
III
The petitioner's first claim is that his criminal trial counsel, attorney Leonard M. Crone, was ineffective for failing to object to the trial court's instructions, and to submit a request to charge, on the element of intent. A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A2d 287 (2002). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).
There is little room for dispute that the court's instructions on intent were imperfect. In instructing on the first count, which alleged attempted murder, the court initially referred to the intent required as the "intent to murder" rather than the "intent to cause the death of another person." See General Statutes §§ 53a-49(a)(2); 53a-54a. Then, after correctly defining murder to require proof that the defendant had the "intent to cause the death of another person," the court further explained intent by improperly providing the entire statutory definition, including inapplicable language concerning the general intent to engage in conduct: "a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or engage in such conduct." See General Statutes § 53a-3(11). On the second count of first degree assault with a firearm, the court merely read the statutory definition — "[a] person is guilty of assault in the first degree when with intent to cause physical injury to another person he causes such injury to such person or to a third person by means of the discharge of a firearm" — without separately defining the intent element. See General Statutes § 53a-59(a)(5). For the third count of assault by means of a deadly weapon, the court did instruct correctly on two occasions that the state must prove that the "defendant intended to cause serious physical injury to another person." See General Statutes § 53a-59(a)(1). But the court then referred to the earlier definition of intent that had used the intent to engage in conduct language. (Exhibit 11, pp. 36-40.) See State v. DeBarros, 58 Conn.App. 673, 679-82, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000) (improper for court to read entire statutory definition of intent when intent to engage in proscribed conduct is not in issue).
Nevertheless, Crone's failure to object to, or submit a request to charge concerning, these instructions was not deficient performance. The court credits Crone's testimony at the habeas hearing that his strategy from the beginning of the case was to rely on a self-defense theory and that he did not seek to contest the elements of the state's case-in-chief, including intent. Thus, Crone's strategy properly recognized that "[u]nder a theory of self-defense, a criminal defendant basically admits engaging in the conduct at issue, but claims that the conduct was legally justified." State v. Collins, 100 Conn.App. 833, 849, 919 A.2d 1087, cert. denied, 284 Conn. 916, 931 A.2d 937 (2007). True to his strategy, Crone, in his closing argument, did not challenge the state's proof on the elements of the three counts, but instead argued only that the state did not disprove self-defense beyond a reasonable doubt. (Exhibit 10, pp. 28-46.) Therefore, because intent to cause death or serious physical injury was not in dispute in the case, there was no strategic reason to challenge the trial court's instructions on intent. The petitioner has thus failed to overcome the strong presumption that counsel made this decision "in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, supra, 89 Conn.App. 376.
For similar reasons, the petitioner cannot prove prejudice, which is proof that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458. There is no reason to conclude that the jury verdict would have been different if the trial court had provided better instructions on intent. The defendant essentially conceded that he had the requisite intent, and so the jury presumably would have found intent under any instructions. The case was not about intent, but rather justification. Accordingly, the petitioner's first claim does not withstand scrutiny.
IV
Second, the petitioner alleges that Crone was ineffective at trial for failing to object to the trial court's reference at least eight times during its instructions to Gopie as "the victim." Although the petitioner points to authorities in other jurisdictions that had condemned a court's use of the term "victim" in a criminal trial, such as the one in question here, in which there was a dispute concerning whether a crime had occurred, the petitioner ultimately concedes that the issue was one of first impression at the time in Connecticut. Indeed, it was not until 2004, after the trial and direct appeal in this case, that the Appellate Court decided State v. Cortes, 84 Conn.App. 70, 84-87, 851 A.2d 1230 (2004), aff'd on other grounds, 276 Conn. 241, 885 A.2d 153 (2005), in which the court reversed a conviction for a disputed unlawful restraint and assault because the trial judge used the term "victim" in its instructions as many as eighty times. See also Cortes, supra, 276 Conn. 249 n. 4 (discussion of impropriety of charge in dictum).
Thus, under the appellate case law at the time, the issue was novel. "[N]umerous state and federal courts have concluded that counsel's failure to advance novel legal theories or arguments does not constitute ineffective performance . . . Nor is counsel required to `change then-existing law' to provide effective representation . . . Counsel instead performs effectively when he elects `to maneuver within the existing law, declining to present untested . . . legal theories.'" (Citations omitted.) Ledbetter v. Commissioner of Correction, supra, 275 Conn. 461-62. Accordingly, there is no merit to the ineffective assistance claim in this context.
V
During the trial, Crone objected to several instances of alleged prosecutorial impropriety and, at the end of closing arguments, moved for a mistrial. The court denied the motion but provided the jury with curative instructions related to inappropriate arguments made by the state during its summation. See State v. Moore, supra, 69 Conn.App. 121-30.
The petitioner now alleges that Crone was ineffective at trial for failure to object to several additional instances of alleged prosecutorial impropriety. In the first instance, the prosecutor argued to the jury: "Justice in this case demands that the truth be found . . . And when you come back and render your verdict of guilty, justice will be done in this case." However in State v. Griffin, 97 Conn.App. 169, 903 A.2d 253, cert. denied, 280 Conn. 925, 908 A.2d 1088 (2006), the Appellate Court declined to find similar comments improper. Id., 177-78 ("The evidence in this case, the law in this case requires — justice, requires that you find the defendant guilty. Make him listen, ladies and gentlemen."). There was thus no valid basis for objection here.
A second instance arises from the prosecutor's statement in summation that: "Glaister ran in fear of his life and it's only by the luck of God that he's not paralyzed or dead right now because the defendant tried to kill him and he almost did it." Although the Supreme Court has cautioned against the use of religious references in summation, it has not invoked a rule of per se reversal, preferring instead to examine whether the challenged statements "pass the threshold of impropriety in that they are inflammatory, unduly evoke the passions or prejudices of the jurors, or improperly invade the province of the jury." State v. Ceballos, 266 Conn. 364, 389-90 n. 36, 832 A.2d 14 (2003). In this case, the prosecutor made only a passing reference to the deity, and did not do so in an inflammatory way. Thus, this statement involved little, if any, prosecutorial impropriety.
Moreover, Crone may have offset any effect of the state's argument by responding in his own summation with the statement: "I think that as a jury sitting in this case, you've been given really almost a Godlike function." The state objected, but the court overruled the objection. (Exhibit 10, p. 44.)
The petitioner contends that the prosecutor referred to facts not in evidence in arguing to the jury 1) that the petitioner fled the scene when he heard sirens approaching and 2) that: "I got over ten different things that [petitioner] did that shows he's guilty." The argument that the petitioner fled the scene when he heard sirens is, however, a rational inference from the testimony that a police officer arrived at the scene with lights and sirens on and testimony that the petitioner subsequently fled. (Exhibit 7, p. 30; Exhibit 8, p. 120.) The prosecutor's reference to "I got ten things" immediately followed a recitation of approximately ten evidentiary points that showed actions or inactions by the petitioner inconsistent with self-defense. (Exhibit 10, pp. 23-26.) Neither comment, therefore, relied on facts not in evidence.
Once again, Crone, instead of objecting, countered the state's argument by taking liberties during his own summation that arguably exceeded any taken by the state. Crone argued: "Would you base a decision to take someone's freedom — their liberty away from Mr. — based on Mr. Gopie's testimony? I — he's a thug. He's a thug. He came in here and he sat down and he lied to you over and over and over again and he was caught.
***
"I'm gonna tell you, maybe this is nothing to brag about, but I grew up on Garfield Avenue in Bridgeport and I've been going to bars since I was 15 years old and I haven't had to don a bullet proof vest or any body armor ever to get into any bar anywhere, but that's what Gopie tells you." (Exhibit 10, pp. 30-31.)
The final instance of prosecutorial impropriety that the petitioner claims his attorney should have opposed occurred when the prosecutor apparently introduced Gopie as "the victim" to each venire panel from which the parties selected jurors. At the time of the trial in this case, however, the most recent appellate case law had not criticized a prosecutor's use of the term "victim" even in a trial, such as the present one, in which the commission of a crime was in issue. See State v. Smith, 51 Conn.App. 589, 591-92, 724 A.2d 527 (1999). While our Supreme Court later cautioned against the state's excessive use of the term "victim" in a case in which the commission of a crime is at issue, the court ultimately held that if the state makes only occasional use of the term, as was the case here, "the jury was likely to understand that the state's identification of the complainant as the victim reflected the state's contention that, based on the state's evidence, the complainant was the victim of the alleged crimes." (Footnote omitted.) State v. Warholic, 278 Conn. 354, 370 n. 7, 897 A.2d 569 (2006). Thus, there is no basis to conclude that, particularly at the time of the trial on this case, Crone's defense of the petitioner from prosecutorial impropriety "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, supra, 261 Conn. 335.
As discussed above, nor had the case law at the time disapproved of the trial court's use of the term "victim."
More generally, the court credits Crone's testimony at the habeas hearing that it would have been counterproductive to object to every conceivable misstep by the prosecutor. To the extent that Crone would have had to object in front of the jurors, Crone would have risked alienating them. Although Crone could have made many of the objections outside of the jury's presence, Crone also had a legitimate concern that repeated objections on rather marginal grounds would have detracted from his credibility with the trial judge. Crone's strategy, instead, was to reserve his objections for the most critical points. The claims that the petitioner now makes upon review of the transcript many years later were not among the most critical at the time of trial. Crone thus had a legitimate strategy to deal with possible prosecutorial misconduct and he implemented it competently. Hence, the petitioner has not overcome the presumption that counsel acted in this area "in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, supra, 89 Conn.App. 376.
VI A
The petitioner's next claim is that Crone rendered ineffective assistance of counsel on appeal by failing to raise the above-discussed claims of instructional error in the direct appeal. In addition, the petitioner alleges that, on appeal, Crone should have challenged the fact that the trial court instructed the jury only on the use of deadly physical force in self-defense and refused to instruct on the use on non-deadly physical force.
The petitioner does not brief a claim of ineffective assistance at trial with regard to this issue, apparently because Crone submitted a request to charge that included both deadly and nondeadly self-defense theories.
Crone credibly testified that he did not raise the claims of instructional error because it was his strategy to emphasize prosecutorial misconduct on appeal. Crone believed that the claims of prosecutorial misconduct were stronger, that the issue of prosecutorial misconduct was a prime ground for reversal at the time, and that he could maintain the Appellate Court's attention by presenting only his strongest claims.
This strategy was a valid one. In order to establish deficient performance of appellate counsel, the petitioner must demonstrate that "appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . ." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). Thus, Crone's strategy of focusing on the claim of prosecutorial misconduct fell well within the realm of effective appellate advocacy.
With regard to the alleged lapse of appellate counsel in failing to challenge the trial court's use of the term "victim" in its instructions, there are additional considerations. First, because Crone did not object at trial, it is not clear whether he could have raised it on appeal under an exception to the contemporaneous objection rule, such as State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or plain error. Moreover, as explained above, the issue was novel both at the time of trial and appeal, and counsel is not ineffective for failing to raise a novel claim. See Ledbetter v. Commissioner of Correction, supra, 275 Conn. 461-62.
In Cortes, the 2004 case in which the Appellate Court first reversed a trial court for using the term "victim," the defendant objected. State v. Cortes, supra, 84 Conn.App. 84. In State v. Santiago, 100 Conn.App. 236, 248-54 (, A.2d (2007), in which a similar claim arose on appeal, the Appellate Court declined to afford Golding or plain error review because the defendant induced the alleged error at trial.
Interestingly, the Appellate Court, in its own opinion in this case, repeatedly referred to Gopie as "the victim." State v. Moore, supra, 69 Conn.App. 118-19, 125-26, 128-29.
B
Nor can the petitioner prove prejudice from Crone's decision not to raise claims of instructional error on appeal. To begin with, the claims regarding the trial court's instructions on intent were by no means guaranteed to succeed. The court's instruction combined both proper and improper language on intent and did not overemphasize the improper, which was permissible under the case law at that time. See State v. Austin, 244 Conn. 226, 232-37, 710 A.2d 732 (1998); State v. Prioleau, 235 Conn. 274, 321-22, 664 A.2d 743 (1995); cf. State v. DeBarros, supra, 58 Conn.App. 679-84 (court either read or referred to entire statutory definition of intent over ten times and included instruction as part of the specific definition of intent required for the crimes charged).
It was not until the 2004 case of State v. Sivak, 84 Conn.App. 105, 852 A.2d 812, cert. denied, 271 Conn. 916, 859 A.2d 573 (2004), that the Appellate Court adopted what appears to be a much stricter rule in this situation. The court noted that "[t]he improper instruction in this case has been held to be improper by both the Supreme Court and this court a number of times. We believe that the charge should not be allowed to survive the defendant's appellate attack, particularly when other language relating to intent in the same charge is misleading. At some point, appellate review should consist of more than a numerical count of how many times the instruction was correct rather than incorrect." Id., 112. It is unlikely that the petitioner's appeal would have been subject to such a strict standard in 2002 because some of the prior appeals to which the Sivak Court referred came after the appeal in this case. See State v. Holmes, 75 Conn.App. 721, 736-37, 817 A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003); State v. Pereira, 72 Conn.App. 545, 575, 805 A.2d 787 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003).
Nor was there reversible error in the court's instructions on self-defense. It is true that the trial court instructed the jurors that the defendant had used deadly physical force and that the only issue for them to consider was whether the use of such force was justified self-defense under the heightened requirements applicable to the use of deadly physical force. (Exhibit 11, pp. 30-35). See General Statutes § 53a-19. It is also true that the petitioner never expressly admitted in his testimony that he used deadly physical force. However, the petitioner did testify on direct examination that he fired two shots at Gopie when he saw Gopie with both hands on a gun. When asked why he fired the shots at Gopie, the petitioner testified: "What else was I gonna do? I mean, if I didn't, what am I gonna do, sit in the car and let him blow my brains out?" (Exhibit 8, p. 115.) Then, during closing argument Peck argued that: "[i]f someone is going for a gun, if he's gonna use deadly force, if it's imminent, then you're allowed to respond in self-defense with deadly force, and that, ladies and gentlemen, is what was done in this case." (Exhibit 10, p. 45.) Thus, the petitioner conceded that he used deadly force against Gopie as part of his trial strategy to show that the use of such force was justified self-defense. There was never any contention that the petitioner had used nondeadly force against Gopie. Thus, because the trial court's self-defense instructions simply tracked the petitioner's theory of defense, there was no basis to challenge them, either at trial or on appeal.
Further, to satisfy the prejudice prong on a claim of ineffective assistance of appellate counsel, the petitioner must "establish that, as a result of appellate counsel's deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Put another way, he must establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt . . . In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel's deficient performance, but also that there is a reasonable probability that the trial verdict would have been different." (Citations omitted; internal quotation marks omitted.) Pierce v. Commissioner of Correction, supra, 100 Conn.App. 11.
At least with regard to his claims regarding the jury instructions on intent and self-defense, the petitioner cannot possibly prove this standard. The petitioner's theory of the case was that he intentionally used deadly force against the alleged victim because it was necessary to do so in self-defense. Error-free instructions on intent and non-deadly self-defense would not have changed the outcome of the case, since they were irrelevant to the issue of whether the petitioner properly used deadly force in self-defense. Therefore, the petitioner cannot prove prejudice from any ineffective assistance of appellate counsel regarding instructional error.
VII
The Appellate Court reviewed several claims of prosecutorial impropriety that Crone had preserved at trial. The petitioner claimed that "a pattern of prosecutorial misconduct pervaded the trial." State v. Moore, supra, 69 Conn.App. 118. The court concluded that "[a]lthough . . . some of the prosecutor's conduct was improper . . . the misconduct was not so prejudicial as to clearly deprive [the petitioner] of a fair trial." Id.
The petitioner's final claim is that Crone rendered ineffective assistance of counsel by failing to raise on appeal the additional claims of prosecutorial impropriety discussed in section V above. The court rejects this claim. To begin with, as analyzed above, many of the claimed specifications of prosecutorial impropriety, such as the claims that the prosecutor made references to facts not in evidence, had no merit at all.
Crone's failure to object to them at trial was an additional consideration. Although failure to object to prosecutorial impropriety does not preclude appellate review; see State v. Stevenson, 269 Conn. 563, 572-76, 849 A.2d 626 (2004), "defense counsel's failure to object to the prosecutor's argument when it was made suggests that defense counsel did not believe that it was unfair in light of the record of the case at the time. (Internal quotation marks omitted.) Id., 576.
Second, although it is possible that adding more instances of prosecutorial misconduct to the ones that Crone did raise on appeal might have strengthened his appeal, it is also possible that adding weaker specifications — as some were — would have detracted from whatever merit the existing claims had. See Pierce v. Commissioner of Correction, supra, 100 Conn.App. 11. Crone testified credibly that he was in fact concerned about weakening his strongest claims of prosecutorial impropriety. This court should not employ hindsight to second guess Crone's strategy. See Kaddah v. Commissioner of Correction, 105 Conn.App. 430, 436 (2008).
The last aspect of this claim is the assertion that Crone should have asked the Appellate Court to reverse the petitioner's convictions because the claimed multiple instances of misconduct by the prosecutor warranted the exercise of the court's supervisory authority. The doctrine of reversal based on an appellate court's supervisory authority, which did in fact exist prior to the petitioner's trial, provides that an appellate court may reverse a conviction "even when prosecutorial misconduct is not so egregious as to implicate the defendant's right to a fair trial . . . [if] the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper." State v. Pouncey, 241 Conn. 802, 811-12, 699 A.2d 901 (1997).
In this case, Crone testified that he did not consider raising a claim based on supervisory authority because he did not think it would be successful. Again, the court should not review this decision with the benefit of perfect hindsight. See Kaddah v. Commissioner of Correction, supra, 105 Conn.App. 436.
Further, there was no evidence that the prosecutor had "deliberately [engaged] in conduct that he . . . [knew], or ought to [have known], is improper." State v. Pouncey, supra, 241 Conn. 811-12. The petitioner does not suggest that the prosecutor violated an order of the court. See State v. Warholic, supra, 278 Conn. 406-07. The petitioner's main theory is instead that the same prosecutor's misconduct in two prior reported cases created a valid inference of deliberate misconduct. However, several years later, when faced with a list of four cases in which the same prosecutor had committed misconduct, neither the Appellate Court nor the Supreme Court chose to invoke its supervisory authority. See State v. Warholic, 84 Conn.App. 767, 773 n. 2, 854 A.2d 1145 (2004), rev'd, 278 Conn. 354, 407-08, 897 A.2d 569 (2006). It thus seems most unlikely that the appellate courts would have done so in 2002 with a shorter list of cases and with claims of misconduct in the case under review that have little or no merit.
Ultimately, "[i]n order to prevail on a claim of ineffective assistance of appellate counsel . . . [the] petitioner must show not only that his appeal would have been sustained but for counsel's deficient performance, but also that there is a reasonable probability that the trial verdict would have been different." (Citations omitted; internal quotation marks omitted.) Pierce v. Commissioner of Correction, supra, 100 Conn.App. 11. The argument that an appellate court would have reversed the petitioner's conviction based on the insubstantial claims of prosecutorial impropriety advanced by the petitioner, and that there is a reasonable probability of acquittal on retrial of this case, reduces to pure speculation.
VIII
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.