applies brach and that should be applied on a standard and that is our position here the state has made an argument that there was a constitutional error in this case so that argument i believe the status fairly violation your client was found hiding in a dumpster with a handgun that was linked to the shooting and there was also other evidence so in your view what is the best argument for prejudice from any error that david courier your honor it's a good question and it comes right to the really what is the crux of the matter this case is was this era harmful to mr jocelyn out in the navarro order she goes through a pretty in depth analysis navarro which pertains to matthews of course addressing the exact same closing argument but she does a and this is an excerpt her records beginning at page one two approx one twenty eight and she does a good job of explaining why this error was harmful regarding matthews but of course since the issue wasn't before her she didn't feel a job with the answer the question is that this is a case of a lot of unknowns and i would concede as i'd have to the dis state has evidence that pays places my client at the scene of the shooting and even some evidence that that attack is him to the farm that was found in the dumpster in which he was found so there is some evidence so we're looking  we want to see whether or not the error had a substantial injury effect on them for the jury's verdict in that analysis i would say first we have to look at the nature of the misconduct here the misconduct here is pervasive and constitutional right and what i'm submitting here is that in the fresh harmless error analysis we have to look at both the state of the trial evidence in addition to the nature of the harm and here we have a constitutional error that goes be it has to be constitutional air whenever we talk about misconduct that implicates core constitutional rights so the first part of my answer is this is serious misconduct and that s v wade the second is that as i said that then and then the prosecution jumped on your client where the there was a crossing in the cross examination we got to up with the two lobsters there were actually when this is a trial and defense attorney singer for who is the dumb and the other defense attorney to some extent did ask the officers like well you don't normally wear a uniform on the job isn't your job non uniform are you wearing it here today well and that was that really so i assume the witness that was improper to us i don't think it is your honor it's a pretty common defense tactic to do that mitigates against the prejudicial effect it seems to me the comments by the prosecutor on what the defendant was wearing but it's an excellent question because you're exactly right that the that invited error analysis does not excuse misconduct the prosecution never whether officers are trying to curry favor with the jury by wearing their uniform which is that argument is directly based on the cross examine some of the officers of that evidence was directly on the record that's a pretty far afield from what the prosecutor did here which is the objection was a proper one and that the district court instead of the instruction denies the objection and that emboldens the prosecutor to double down on that misconduct and you see that again if you look through the rebuttal argument which is contained in the first volume of the excerpts of record from forty six to seventy two that's the prosecution's rebuttal argument you'll see this again and again and i stress in my petition and in my reply to just a court and on appeal the most severe instances of misconduct but if you read that rebutt you'll see misconduct happen again and again furnish shifting vouching objection after objection all raised on appeal to the vatican command and remind me what did the nevada supreme court say that's their decision argument although the argument was improper they say one of their cases and also that this court's case sure he concluded jocelyn failed to demonstrate prejudice that's the entirety of them so suhler just to go back to this records opinion is contrary to chapman because they do not apply the harmless underbelly as they put the burden on jobs on the poor produce so that's contrary to chapman so the next step is is  good morning your honor society stern on behalf of the respondents the touchstone of due process in a case of alleged prosecutorial misconduct is the fairness of the trial joshua received a fair trial in this matter in order for this court to affirm the district court's finding it really only needs to look to the actual prejudiced standard that is sufficient and that's what the district court did hear there was overwhelming evidence of guilt there was a direct link he had a direct link to the crime the gun he was holding was found to have fired ten shots at the scene of the crime there was also continuous witness identification of josh one as he ran from the car the scene of the carjacking to the dumpster where he was found and he was found with gloves that had gunshot residue on them as well as the gun linked to the crime in addition he met the general descriptions of the assailant given by all of the identity i d witnesses now the victims it is true did not personally identify him but he generally met their descriptions of the perpetrator of this crime in addition it's important to recognize that in the was less yes because there was no direct link matthews was actually found several hours or couple of hours later after the crime i have a weapon i mean he did not have the weapon on but his the sawed off shotgun was found to be the one o in contrast to this overwhelming evidence of guilt there the statements at issue that are complained of were fairly isolated they were put in context really about the evidence the  prosecutor was saying look at the evidence at the beginning you presume everyone innocent now you've heard everything all of the evidence against them now don't they look guilty she does not explicitly mention their appearance their race or their socio economic status and any error regarding the clothing that she references was an invited error which mitigates any prejudice so the state would submit that in this case the jury would find joshing guilty regardless of whether these alleged misconduct had occurred or not what is what is your theory with respect to what we do with the nevada supreme court's finding that there was no prejudice yes my for my first argument regarding that would be you don't necessarily need to go there you can affirm the district court which applied the breck standard and that's enough for denial now if this court were to consider granting the petition josh one does bear the burden of showing that the nevada supreme court's prejudice and harmless they are ruling was contrary to chapman and this is not a case i'd like to to make note of this is not a case like some of this court's prior cases where the state court actually applied a lesser standard than required by chapman if you look at the state court case cited by than about a supreme court it basically applies an actual prejudice standard it compares ways the evidence and the prejudice and determines you know it determines the prejudice that way so counsel yes i have a question in your view as the standard for  you make a difference to the outcome depending on whether we follow defense counsel suggestion of brar or your proposed standard of review no i don't think that it would make a difference in this case mostly because of the overwhelming evidence of guilt and the relative minor ness of the miss any alleged misconduct i would also say in addition that the court the trial court here when the comments were made and objected to by matthew's counsel did say to the jury well this is argument and later instructed the jury of course they could not consider counsel's argument as at that and so there was a curative  instruction here as well and so valid judge this is argument in response to the objection yes and then later in the jury instructions and the district court relies on that below in its order so in any case in order for for joshua to prevail on on his chapman argument about that about a supreme court he would have to show that they're they're finding of no prejudice was contrary to chapman it doesn't matter here that they didn't cite chatman or they didn't explicitly state that they were applying the chapman standard it's whether they're finding contradicts what chapman requires and it's argument that  and if the court has further questions i'm available otherwise that's what i have thank you hearing for the question you don't appear to be i thank you completely that is a false statement this record as anything but overwhelming evidence there is no evidence in this record here of motive of intent there is no evidence of any meeting there's no evidence that these two defendants even knew each other knew any of the victims there's this is the facts of this case there are very unusual and it's a very strange prosecution where there are so many unknowns i mean to say that is overwhelming and in regard very clear that none of the officers know about he was able to identify him until after he was found the dumpster and he was not in their line of sight the entire time matthews there was twenty eight rounds traced to the weapon matthews was found with the police officer identify