-: SJC 13215, Commonwealth v. Michael Eagles.
-: Good morning, my name is Dennis Shedd,
and I'm representing Michael Eagles.
At Eagles' 1987 trial for the murder of Lewis Jennings
crime lab analyst, Jay Godleski,
testified that two hairs found in Jennings' hand
were consistent with Eagles' hairs.
As Humeicus points out,
his opinion may have been influenced
by the fact that he knew that the questioned hairs
had come from the victim's hand
and that Eagles' was a suspect.
Information an analyst would not be given today
when we recognized the importance of blind administration.
Godleski went on to testify
that he only declares hairs to be consistent
if they match in every characteristic,
that he's familiar with the frequency
at which various characteristics occur
in the general population,
and that the chance
that a random person would have matching hair
was only one in 4,500.
Now, as the Commonwealth acknowledges,
newly available evidence shows
that that statistical testimony
is unsupported by scientific evidence.
In fact, nothing is known about the frequency
at which various characteristics occur,
where those characteristics are independent
of each other. -: Counsel, I understand that,
about where we're at,
and that now hair's inadmissible, those comparison, right?
That's where we're at, would you say?
-: Yes. -: Okay.
So bearing that in mind, I have two questions.
One is, in the context of this case,
what other physical evidence is there
that places the defendant at the scene
or as the perpetrator?
-: Well, there's no question he was at the scene.
He admits he was at the scene.
So he testified that he was asked to be the lookout.
-: All right. -: While Roberio
breaks in. -: And there was footprint
and he had blood on him,
right? -: That's right.
-: Okay, now, when we move from that to the hair,
the hair seems to me to be a bit cumulative.
But what would that hair tell us about the crime?
-: The hair tells- -: Or his intent
or something like that?
-: Sure, the hair suggests when he was there.
-: He's testifying- -: How does it do that?
-: He's testifying he comes in 20 minutes afterward,
finds Jennings on the floor, unconscious.
He's beaten, ligature tied tightly around his neck,
which he tried to loosen.
Roberio had told him this house was gonna be unoccupied
and his intent was limited to assisting
in a breaking and entering of an unoccupied home
with an intent to steal.
Those hairs in his hand,
so that's evidence that he did not have the malice
for murder.
He didn't have an intent to commit an assault
and didn't know Roberio would.
-: That's his testimony, tight?
-: That's right. -: But what does the evidence
show us?
The hair evidence,
what was it used for in the case?
-: The evidence about the sneaker print, the blood on him,
that all could have come in as he testified.
After he entered, there's blood in there.
He approaches Mr. Jennings,
tries to loosen the thing, steps on the pillow.
None of that shows he was there
while the assault was taking place.
-: How- -: The hair evidence
turns that out around, it's in his hand.
That suggests he was in the house
at the time the assault was taking place
and very well participated in it.
Counsel, may I just interrupt you on that though?
-: Sure. -: But wasn't there
cross examination on this
that the hairs just could have fallen off
while he was in there?
That's how they ended up there.
I guess what I'm distilling down to is,
he testified
and all of these different kind of advocacy spins on,
the jury just could not,
basically just didn't believe him, right?
Because he testified he wasn't in there.
He testified that he was just a lookout.
He testified that he had no part in the underlying crime.
He testified to that.
-: That's right. -: Right, and so why isn't it
that the jury just didn't buy his testimony?
-: Well, the point here is the importance
that was put on this hair testimony.
The prosecutor notes in his closing
that Jennings' hand is underneath him.
How could that hair have gotten in his hands
if Eagles' had not been in there
taking part in this assault?
That's the argument.
That explains why how he was there
inside at the time of the assault.
It's that hair, that's that critical, physical,
that puts him there at that time.
-: But let me go back to a point that you made earlier
in your argument.
It's just the statistical stuff that was incompetent, right?
He could still testify to the comparison
that he thought this was a hair
from the defendant's head, right?
I don't think so, no, your honor.
In the same way that DNA match evidence
is inadmissible without statistical support,
hair comparison obviously equally be inadmissible.
In Tarver this court said
the reason hair comparison comes in
is because it can illuminate a large class of people.
Without statistical support,
you can no longer say that.
That's no longer true. -: The point is that
you can testify consistent with,
but not really beyond that
because we don't know the percentage of the population.
-: Right, there's no clue as to,
I mean, this case, he would have to admit.
Even if his testimony could come in,
I believe it's consistent without statistical support,
this would've been a very different trial
because he would've had to admit
he doesn't know how many people might have matching hair.
He doesn't know how often here other people get it wrong.
And most importantly, at this trial in 1987,
trial counsel had no reason to question those statistics.
They were generally accepted at that time.
So he concedes my client's hairs
were found in Mr. Jennings' hand.
And he says that's the cannon in the case,
that's what he said.
And that put him in the pretty much impossible position
of trying to explain how those hairs
could have gotten in Mr. Jennings' hand
if he hadn't been inside at that time of the assault.
-: I don't wanna try and distill your whole argument
to one sentence,
but is it that with that evidence
there was no chance of anything other than a guilty.
-: With the hair evidence?
I think with the hair evidence,
that's pretty overwhelming evidence
that he was in there at the time of the assault
and may well have participated in it,
'cause as the district attorney argued,
how else could those hairs
have gotten into his hands at that time
given the position his body was in when he was found inside.
But if you take away the statistical testimony,
trial counsel would not have conceded
that those were Michael Eagles' hairs in Jennings' hand.
He could argued these were-
-: He might not have conceded that,
but he still had to contend with
there was a bloody footprint on the pillow case.
There was blood found on Mr. Eagles, right?
Counsel Dennis: Right, and all of that could have come in
exactly the way Mr. Eagles testified.
He came in afterwards.
-: I agree, but the point I'm making, I keep going back to,
is he testified to all of that.
And why isn't it even without the hair evidence
that the jury was free to disbelieve his testimony?
-: They were free to disbelieve.
I think it's the hair evidence,
it's the critical link here that pushed them into saying,
"I don't believe this testimony.
He says he didn't come in till afterwards
and this hair evidence
shows he did come in there beforehand.
Is the hair evidence that makes his testimony
so incredible."
You take that away and then this is a very different case.
Trial counsel could have argued
these hairs could have come from Roberio or anyone else
who might have been in that house at any time.
Because keep in mind that those hairs were found
in Jennings' hand
along with grassy material
and what appeared to be Jennings' own hairs.
So those hairs could have been on the floor
for who knows how long
and gotten in Jennings' hand
when, as the prosecutor, argued,
he was being dragged from room to room
in the search for money.
That's the critical link here. -: Can I just ask
a quick question about the evidence?
The bloody footprint on the pillow case,
wasn't that the ligature around?
Was that the ligature around the victim's neck?
-: No, this is a separate separate pillow case, I believe.
Yeah, the separate pillow case.
So if you take away the statistical evidence in this case,
the Commonwealth's evidence that he was inside
at the time of the assault
is much, much weaker.
And that's the evidence that suggested, in fact,
he had the malice,
the intent and knowledge necessary for murder
and armed robbery.
Without that, just the mere fact that the omission
of the statistical evidence
would've turned an important concession by the defense
into a disputed issue for the jury to consider
is alone enough to show that the statistical testimony
was a real factor.
-: That's what I wanted to ask you.
The standard is that it has to be,
we have to consider it to have been a real factor
in the jury's deliberation,
correct? -: Right?
-: And so how do we discern that from the record?
-: Well, again, I think you discern, again,
a real factor doesn't mean necessarily
it would've proven he's innocent.
Is this a factor the jury consider?
And in Cowells this court said
that evidence that's more credible
than any other on an important issue
likely would be a real factor.
And in this case, the hair evidence is far and away
the strongest evidence
putting him in that trailer at the time of the assault,
suggesting he participated in the assault
and therefore he must have had the malice and intent
necessary for this.
-: I am still not quite getting how the blood evidence
is not relevant to timing,
but the care evidence is.
-: The blood evidence could have gotten on Mr. Eagles
in exactly the way he testified, after he comes in.
That says nothing about when he was there.
Hair, Eagles' hair, in Jennings' hand,
you wonder how could that have gotten there
if he only came in after he was unconscious?
It's virtually impossible.
The hair evidence is the evidence that suggests he was there
while Jennings was standing up trying to struggle
and not have his money be stolen.
The hair evidence is what puts in there earlier
before Jennings was unconscious on the floor,
and that's the only evidence
that puts him there at that time.
-: About the occult blood on his hands
and underneath his fingernails.
-: He acknowledges, he went in there, he bent over Jennings,
touched him, tried to loosen the ligature,.
He acknowledges all that.
So again, none of the blood evidence puts him there
at the earlier time.
The hair evidence is the only evidence
that puts him inside the apartment
prior to Jennings being unconscious on the floor,
suggesting he took part in this assault.
So that was critical evidence
to show that he had the intent and knowledge
necessary to commit the murder by extreme atrocity
or armed robbery, which becomes felony murder.
-: Counsel, could I go back to the point
that Justice Lowy brought up?
Do you concede that he could have testified
that it's consistent with Mr. Eagles' hair?
-: No, I do not.
Again, I think this is like...
In the same way that evidence of a DNA match
is inadmissible without statistical support,
because without statistical support
you can't say it eliminates anybody.
Same thing here, without statistical evidence
showing it would've been eliminated a large class of people,
his opinion that is consistent should be inadmissible.
Do we do that
with fingerprints? -: But again,
even if that is admissible,
the trial would've been so different
if he could only enter that without any statistical evidence
that it still would've been a real factor
for the reasons I've already stated.
-: Well, if you're wrong about the fact
that he could have testified that it was consistent,
would you say that the prosecution could still then use that
to argue at closing that he was in there when it went down?
Sure, sure, they could argue that, yeah,
but I think it would've been a much weaker argument
without the statistical support.
And again, counsel would no longer have been conceding
it was Eagles' hair in his hands.
That would've been a contested issue.
And Mr. Godleski would've had to acknowledge
he had no idea how many people might have matching hair,
how often he or other examiners
make mistakes on these things.
That would have been
a very different trial. -: But at least
with the consistency component of it,
he was cross-examined on that, right?
Wasn't there cross-examination
about there's something to the follicle
that suggests it was pulled out
versus some other way that it fell out?
Wasn't there cross-
-: Oh, yeah. -: Yeah.
So- -: Cross examined him.
-: Yeah, he was cross examined on those points,
right? -: Right.
-: So that wasn't enough?
-: No, it wasn't enough because, again,
how would it get into his hand?
And if eagles is there and a hair is loose,
it didn't have to be pulled out.
If a hair is in his scalp and loose,
if it's on his shirt and Jennings touches him
it could have gotten in his hand.
But how does it get in his hand if Eagles is only in there
after the assault is over, he's unconscious
and Mr. Jennings' hand is under his back?
How can it happen?
It's a difficult argument for counsel to make.
And obviously his argument was unsuccessful.
Without this statistical evidence though,
it'd be a very different trial
even if Godleski could testify the hair was consistent.
-: Yeah. -: Even if he could testify
to that. -: Shedd,
I just have two more questions for you.
One is, on the statistics for the hair,
do we require statistics for fingerprints?
-: No. -: And should we?
-: Well there's certainly some issues have been raised
about the reliability of fingerprint evidence.
So that's certainly something
that might be considered at some point
if we learn more about the scientific basis
for fingerprint evidence.
-: Right, and then my other other question is,
what effect would our ruling in this case
have on all of our other...
We must have other cases in the pipeline
and in the past where hair evidence has been used.
How should we handle all of those cases?
-: Well I think, again,
my position is that the hair comparison
should be excluded in its entirety,
but the question then becomes
the same prejudice issues arise in this case.
How important was the hair evidence
in the context of this case,
of that particular case?
In this case, I think there was no other evidence
suggesting Eagles was in the trailer
before Mr. Jenning was unconscious.
It's a critical difference.
In other cases it might not be that important.
So it's a case by case decision I think.
-: Could I go back to whether or not consistent with
would be permissible?
What did the FBI report in 2015
that referenced that you can't indicate a probability
or improbability number?
Did that report in any way address
whether consistent with
was or wasn't a permissible question?
-: Well, it certainly said that an analyst
could conclude that hairs are consistent,
but whether the admissibility,
whether that's admissible to court
was certainly not an issue that was being raised by the FBI
or the other participants in that study at the time.
So they were saying an analyst could conclude
it was consistent,
but without any statistical support,
that's all they could say.
So whether that's admissible,
is not a question for the FBI.
It's a question for in here, this court.
Okay, so because Godleski's testimony
about the hair comparison
was a real factor in the deliberate,
likely was a real factor in deliberations,
Michael Eagle should be granted a new trial.
Thank you.
-: Thank you.
Okay.
Attorney Hansen.
-: Good morning.
Aren Hansen for the Commonwealth.
With respect to this conviction, it should be upheld.
Ultimately it doesn't really matter.
The hair doesn't change anything in this analysis.
-: Well, how could you say that
when the prosecutor spent time
saying that that was the thing that put the defendant
in the trailer at the time of the assault?
-: So there's two factors here.
There's other physical evidence
that links the defendant to the attack
and there's the fact that he's a joint venturer.
So respect to the other evidence,
we've already touched upon it.
He's covered in the victim's blood.
-: Yeah, but what puts him there at the time of the assault,
which would lead to the knowing of the intent?
-: So the defendant explained at trial
that he was a lookout for 20 minutes
and then he went inside.
When he went inside,
he found the co-defendant standing over the victim
in the living room
and he was already unconscious and he had the-
-: Right, and so then the prosecutor in closing argument
says, "That just doesn't make sense because the hair,
given the statistics,
was there underneath the body in the hand of the victim."
-: Right, so then the defendant continues and states,
"At that point we started searching the trailer
for the money, and that's when we uncovered the money."
That testimony ignores the fact that the victim
was dragged around the trailer.
There was blood in every single room
that was dripping on all the surfaces in that room,
which suggested he was being dragged around the trailer.
And that was done so that it could find
his hidden hiding spots while he was still conscious.
-: Okay, so I guess you're ignoring my point.
The prosecutor makes a big deal in closing argument
about the fact that there's a hair in the hand
underneath the body of the victim
and uses that to say, "Well, that is inconsistent
with the defendant's testimony."
-: Right, that was just one piece of it.
The fact that- -: But it's a big piece, right?
Because defense counsel has already conceded
that that's the canon that he can't explain.
-: Right, it was just one piece.
Now, the second part of it is-
-: But it is just one piece,
but why is that not something
that would've had a real effect
given the emphasis that the prosecutor placed on it
and the defense counsel went to great lengths
to try to explain through some tape?
-: Because of the physical evidence, again, he's covered,
he just doesn't have a little bit of blood.
Every part of his clothing
as well as underneath his fingernails has blood on it.
-: With type O blood.
And how rare is that?
-: I'm sorry? -: How rare is that?
-: I don't know. -: Yeah.
And was that in evidence at all?
-: No. -: Would it surprise you
to know that 40% of us have type O blood?
-: That's new to me.
-: Counsel, could I go back to just try to put a fine point
on Justice Wendlandt question
because I don't know that if you agree
with attorney Shedd's position,
but I separate this out into two things.
There's the statistical information that he testifies to
that we know he can't, right?
-: Correct. -: But could he have testified
that on his analysis
the hairs that were found in the victim's hand
were consistent with Mr. Eagles'?
-: That is my understanding.
Through my research, I have not come across anything
that suggests that you can't make that comparison anymore,
that the statistics have been ruled as wrong science.
My research has also shown
that microscopy has fallen out of favor
as DNA analysis has become more relevant.
-: But it goes back to Justice Wendlandt point
and the one that zeros in on the closing argument,
because if he could testify to it's consistent
with the defendant's hair,
he could argue at closing argument
the only way it got there is because he was there,
couldn't he? -: Yes.
I agree with your honor.
-: And you wouldn't need the statistical part of that
to support that argument.
-: I agree. -: Okay.
-: And do you think that that would survive Daubert,
that something consistent with,
even though there's no statistics to back it up,
that would come in as admissible evidence
as a quasi expert evidence?
-: That would certainly be a challenge.
-: That would be a challenge, wouldn't it?
So the admissibility of even the consistent with
would be a problem?
Is that the Commonwealth's position?
-: I would agree that's fair.
-: So we would have to,
in assessing the argument here on a motion for a new trial,
consider the possibility that even the consistent with
would not have been admissible
given the lack of statistical basis.
So basically the hair expert
would not have been allowed to testify.
-: I wouldn't go that far, your honor.
So he explained what his analysis was,
that he compared them on,
I believe 10 major and then several other minor comparisons.
I believe that he would've been able to say,
"I looked at this part of the hair
and it was similar there."
And I go through each one of his 10 to 15 factors
and compare those on that.
-: Even though there's no statistical basis
for making that assessment of consistency.
Man: Tracks a bunch of other stuff.
Counsel Hansen: Yes.
The jury could draw their own conclusion.
-: I guess the question might be, by way of analogy,
the DNA evidence,
the non-exclusion evidence requires a number.
You can't just say this is non-exclusion.
inconclusive is not admissible
and exclusion requires statistics.
So the question is whether or not that analysis
would carry over to hair follicles as well.
-: Right.
I don't have an answer for the court on that one.
I think ultimately he's a joint venturer in this case.
What's important here is that Roberio
was clearly the initial planner.
There's testimony at trial
that he was looking for somebody else to go with him,
and two other people testified
that they didn't wanna participate in this.
This crime didn't happen until Michael Eagle signed on.
-: Right.
There's significant evidence, no doubt about it.
And the defendant may well have been convicted
without the hair, may well have.
So whether or not this evidence is enough for a new trial,
you do need to confront that the, again,
picking up on the point from Justice Wendlandt
that the prosecutor's saying the hair
could not have landed there accidentally
underneath the body.
And so therefore the defendant's story
about when he went into the trailer is not credible.
And whether or not that type of evidence
is enough here for a new trial,
it's not whether or not you wouldn't have had
significant evidence that he was guilty.
-: Right.
I think at the end of the day, even without that evidence,
he's still a joint venturer
where he admits that he was a lookout.
He admits that he goes in.
-: Venturer on a breaking and entering though.
To be the joint venturer on the felony murderer
on the extreme atrocity of cruel,
he has to share the intent.
-: Well, this was a felony murder
where he would've to share the intent
for the armed robbery.
-: And to share the intent for the armed robbery
you'd have to know that he was armed,
that there was somebody inside.
-: Correct. -: It doesn't answer
all the questions
because you have to share the intent for the armed robbery.
And what the defendant's saying
maybe Justice Georges makes a good point.
Maybe the jury just not gonna a credit him.
He's right there on the witness stand.
But you have to show the shared intent
for the armed robbery.
-: Right, and there's plenty of evidence from the scene
that it was clear that the victim was home.
This was an isolated area
where the defendants needed a car to access.
They didn't sneak up on the property.
They see that the car is on the driveway, the lights are on.
The outside porch is latched.
Two people testified that you could see into the living room
through the window.
The victim was watching television at the time.
It would've been abundantly clear that somebody was home.
And they knew somebody was home
because they pulled the phone wires out
to prevent the victim from calling for help.
So even if he went there for a B and E,
it was clear that the victim was home,
at which point it turned into an armed robbery.
-: Which at least gets you to the felony murder.
-: Correct.
Now, with respect to the last portion of my argument,
in all the cases that have been overturned,
we have affirmative DNA evidence
stating that this person
was actually not linked to this crime scene.
And I'm referring to Sullivan as well as Cowells,
where they went back and did a DNA test and said,
"You know what, this one piece of physical evidence
that links this individual to this crime scene
no longer exists and we don't have that here."
-: Can you refresh my memory on Cowells.
-: In Cowells, a young girl was murdered
and the two co-defendants that did it
came back to an apartment and washed up afterwards.
There was blood on a towel
that they used to dry themselves off
and that was used to tie them to the murder.
They went back and tested the blood on the towel
and the DNA testing showed
that the blood did not belong
to either the defendants or the victim.
And now in Cowells the court also held
that there's a substantial difference
between a test that says
that this affirmatively does not belong
to either defendant or the victim
or any other person that might be in question
in a test that is inconclusive.
Essentially, if we throw out, well, we should.
The statistical probability is gone,
It's not scientifically valid.
But if we just ignore that and throw it out of this case,
we still have an inconclusive result here.
We don't know where the hairs came from.
We can't say that they didn't come from Eagles.
-: Is that the burden on the motion for new trial?
I thought it would it have had a real effect on the jury.
-: That is correct.
But I thought it was just important to point that out,
that if we look at Gudro,
it's important to look at information
that could have been analyzed
when determining whether a motion for new trial
should have been allowed,
and hear the defendant has explicitly
not tested using DNA, tested the hairs.
This would've been a substantially more direct way
to attack his conviction.
And I would suggest to the court that it's important
to note that they chose not to do that.
Rather they chose to attack it laterally
by saying that statistical probabilities
are no longer good science.
-: So you're suggesting that DNA testing
could still be done of the hair?
-: That is a possibility, yes.
And my understanding is that the defendant
did not follow up on that.
-: Did the Commonwealth?
-: I did follow up.
I never heard back from the lab.
They stated that they were gonna send me an inventory.
I never received that, unfortunately.
-: Did the defendant know that the co-venturer was armed?
-: So that's where Commonwealth v. Booth comes in,
which I reference.
Even if he doesn't know that he's armed
when he goes in initially,
if he becomes aware of the fact that he's armed
during the co-venture and then continues in the co-venture,
he would have the requisite intent.
So you don't need to know that he's armed at the beginning,
but if he become aware of it, that's enough.
-: And what's the evidence that he became aware of it?
-: He walked in to the trailer
and Roberio's armed himself with shotgun
and the victim has been beaten.
The physical evidence suggests
that he was strangled with a ligature,
specifically the pillow case,
but that he was also attacked with a chair,
which was also covered in blood.
That was inside of the victim's.
-: But what is the evidence that the defendant was there
at that time when all these things
that you're listing happened?
-: Well, I don't believe that matters
the fact that it happened before,
but he was still acting as a lookout, as a core venturer.
I think that's what's important here.
He doesn't need to be present.
He doesn't need to be-
-: But you're saying that that's how he knew
that his co-defendant was armed
because he was present
when all of these things were happening inside the trailer?
-: No, I'm stating that once he walked into the trailer
and he saw the defendant with a shotgun,
I think it's reasonable to infer
the defendant had armed himself
while beating this individual.
-: But you're saying that as long as you find out
even after the crime has occurred, then you can be-
-: This was during the commission of the crime, correct.
-: Yeah, what's the evident, I guess that's my question.
What is the evidence that the defendant found out
during the commission of the crime
that these things were happening?
-: He walked in and he saw the victim
laying on the floor unconscious
with a ligature around his neck.
He testified- -: You're relying
on his testimony.
-: Sorry? -: Are you relying
on his testimony to that? -: Correct.
He testified to that
and he testified that he tried to loosen
the ligature as well.
He's well aware of the fact that-
-: But how do we know that happened before or after?
-: Oh, that would be based on his testimony.
That would be based on the defendant's testimony.
-: Did the defendant testified that he was there after?
-: Correct, but it was still during the commission
of the robbery.
The victim is beaten unconscious.
He's strangled with the ligature.
The defendant says he then walks in and then they continue,
and that's when they start to rob him
and steal all of his money and then they make their escape.
-: So can I ask you, are you relying on case law
for the armed robbery
that even if the victim is deceased
in the immediate aftermath of the robbery,
excuse me, of the death, that is,
something stolen that it would be still a robbery?
-: Yes, I would point to court to Booth
where the robbery was of drugs
and two people were shot during the commission of that.
And in that case, the conviction was upheld
and all the defendant who Booth was doing,
was acting as a lookout.
Here the defendant did substantially more
where he acted as a lookout,
but then went inside and he did in the robbery.
He's seen with a lot of cash
after the fact he has coins
that are taken from the victim's beer stein
that he offers to one of his roommates
to pay for household expenses.
So he certainly profited in the robbery as well.
-: Did Booth claim that he didn't know
that his co-venturer was armed?
-: He did initially,
but the court inferred
that he should have known ahead of time.
So they were robbed a drug dealer.
It could have been inferred that they were gonna use weapons
to rob drug dealer.
Because they were robbing a drug dealer,
the other thing was- -: Right.
So they knew someone was home and so that's why-
-: Correct. -: Hurt.
-: But even during the commission of the robbery in Booth,
two people were shot.
-: Which would've been allowed. -: I did the case,
so I remember, yeah.
-: And the defendant stayed outside.
So it would've been reasonable infer
from the fact that gunshots came from inside the house
that a weapon had been used
and he still continued to participate.
-: Yeah, I understand,
but the difference is just when,
if the person doesn't know that the co-defendant is armed
until after the victim has been hurt
by whatever the guy's been armed with,
is that still the knowledge of the arming?
-: Correct. -: Okay.
-: That is my understanding of the takeaway from Booth
is even after the fact it would still be valid.
Justice Budd: Okay.