issue were testimonial and then unless your honour's have further questions on that point i'll turn to the harmfulness of the confrontation violation in this case particularly in light of the fact that this was mr shinde second trial and that the first jury had might again have had a question as to whether the prosecution carried its burden beyond a reasonable doubt the fact that a juror had previously had such a question shows that it's not at all unreasonable or speculative to think that there could have been a similar outcome in this case where again the evidence presented at the trial was so similar to the evidence presented at the first trial apart from the absent the clarence who actually conducted the autopsy of deceit and sanction of just briefly on the issue of whether the autopsy report was testimonial i'd like to emphasize the fact that this inquiry should be made on a case by case basis the question before this court is not whether autopsy reports are in all cases always testimonial and i believe that's something that may have gotten somewhat obscured in some of respondents briefing and in the decision of the lower court but if you look at how the united states supreme court has addressed the issue of whether statements and forensic reports are testimonial in the cases that have come before it it's always looked specifically at the circumstances of that case rather than issuing blanket rule i think we can probably all agree that the supreme court's jurisprudence on this issue is a mess specially after williams so from my perspective my call has been well more on the confrontation issue but let's assume for a moment that it  is it is it meets all or requirements and that we get to the issue of harmfulness or harmlessness under brecht so you argue that at least from my perspective that's really the turning point here is of that other testimony isn't that the evidence pretty overwhelming well i'd like to clarify exactly what it is that was the source of the confrontation violation and then explain why it is that there actually wasn't other proper eating evidence on those particular points so within the autopsy report that was parroted basically to the jury by dr sherris testimony there were a handful of statements that contradict least arguably contradicted mr shinde self defense as to moni and were not independently offered as opinions by dr sherry and those items there are basically three relevant items one was the absence of st ling on the chest when and as to the other two wounds dr sherry looked at photographs and offered an independent opinion as to the presence of stippling with respect to the chest wound dr sherry was never asked and never offered any independent opinion as to whether or not stippling going back to the issues that i said at least from my perspective is really not all the believe what you get to that let's assume all of that is true how do you deal with the statement that he made to his mother how do you deal with the statement he made t journalist and so on these are independent things that have nothing whatsoever to do with the confrontation clause that the jury could have relied upon in part to reach its verdict right well ya know the statement that mr made to his mother was simply i shot and this wasn't a question what if the same was i shot he was shot i shot it he was overheard saying the words i shot oh i so you know and the context of his being some kind of a german the context of his being overheard making that statement was that he was about to go into surgery it was an emergency situation and a neighbor testified that he overheard mr shinde simply say the words i shot those words in and of themselves prove absolutely nothing about whether or not mr shin shot in self defense if he shot in self defense he still shot the other reason that those words prove nothing about whether or not he shot in self defense is that he undisputedly shot himself story doesn't fit with that does it well what are you really does your honor because in the struggle as it occurred as explained by mr shand in his testimony both men were trying to fire the gun they were struggling over the gun they both had their hands on it and if whether it was deceived and sanctioned trying to fire at my client they have to physically pull the trigger back corral or for it to fire this one man was shot three times how does that happen accidentally i don't believe the testimony was so much it happened accidentally is it happened during a struggle is ok i will say even if during the struggle i mean one maybe three during the struggle and during that time mr shinde testified that deceive unsanctioned was trying to shoot him so it stands to reason that sanction would have been trying to pull the hammer back if he was trying to shoot my career it was necessary for him to get the gun in operating condition in order to fire the shot ok i hear your point but but the reality is what we're talking about here is are evidence that was presented to the jury independent of the confrontation issue in the lab  that the jury could have believed undermines your client's self defense issue and the point is that when you have somebody shot three times it's somewhat strange credulity that three different times someone physically pulled the hammer back and got shot three times while they were wrestling for well just to clarify the third shot mr shinde testified was actually he had gotten the gun and sanction toward him trying to retake the gun so the third shot was in a somewhat different content as well and who shot two of the three shots you have the same problem right again your honor the my response is simply that that someone was trying to fire the gun sanction was trying to fire the gun and it's not inconsistent with sanction trying to fire the gun that the gun was being put in operating order to fire a shot with respect to the other evidence a couple of other pieces of evidence that were offered by the prosecution against mr shin it's really significant that the jury responded on the row charges with a second degree murder verdict instead of a first degree murder verdict because it shows that they actually disregard some of this evidence where they didn't credit what the prosecution argued one of the pieces of evidence that respondent has relied on and that the prosecution right on was a letter that was purportedly a murder suicide note as we explained the excuse me in the briefing had the jury credited the prosecution's explanation of that very ambiguous note as being a murder suicide note they would have had to have found that the murder of g rowe was murder in the first degree because it would have been premeditated clearly they rejected that evidence in reaching their verdict  with respect to the testimony of a newspaper reporter which are on a referenced again the jury by reaching a second degree verdict must have rejected the prosecution's spin on that testimony because if they credited the testimony of a newspaper reporter who admitted that he had taken no notes during the interview and that he had sensationalized the story as much as possible they would have had to find that the murder of a row was premeditated basically act committed execution style so some of this other evidence that was that has been relied on by respondent to show the strength of the case against mr sharon was plainly rejected by the jury in this case one other thing to keep in mind here is that the prosecution had the burden to prove beyond a reasonable doubt that mr shinde did not act in self defense the burden was not on mr shand to prove that he did and i think from that perspective this this testimony that came in actually was harmful because it arguably contradicted sions testimony as to why he acted in self defense unless your honour's have further questions at this time i'll reserve my second good morning honors deputy attorney general denham mohammad ali on behalf of the warden please the court the district court's judgment should be affirmed because the california court of appeal reasonably determined that any confrontation error was harmless beyond a reasonable doubt and indeed this case does turn on the harmlessness determination and this court must defer to the state courts determination in that regard unless this court finds that the state courts application of chapman was actually unreasonable which it was not turning very briefly to the first question of whether there was any confrontation there at all the district court probably found that no such error occurred in this case and that was for several reasons the most important being that no autopsy report was ever admitted into evidence holes report and what difference does it make well in this case so the difference is is that instead of him just parroting back dr ponchos findings he rendered his own expert opinion which was permissible  under california law and under federal law and in any event dr ponchos findings were not testimonial autopsy reports have never been found by the supreme court to be testimonial they've never decided that question the have the primary purpose they fail the primary purpose test that's that has been outlined by the supreme court and what was actually admitted in this case the diagram itself  ponchos findings rock lacked the requisite formalities of what has been found to be testimony also the just your court's findings in this regard were correct and any about even if any competent or an error occurred  again this court must refer to the state courts finding a parlous under chapman unless such a finding itself was unreasonable and in this case it was not the state court applied the five van arsdale factors and in weighing those factors determined that any er was harmless beyond a reasonable doubt and that was because this case did not turn on the coroner's testimony in fact the coroner's testimony regarding stippling supported petitioner's self defense theory supported the theory that the shooting occurred during a struggle  what was the most powerful evidence here was petitioners own testimony the jury was able to view petitioners demeanor he testified to his version of the events which conflicted with other evidence of  previous statements both to hit both to his neighbor and to the newspaper reporter and even while on the stand petitioner change the story during cross examination so that really was the most powerful piece of evidence and for those reasons the state courts determination was reasonable move just briefly i'd like to emphasize that as we stated in the briefs i always did not change the fact that brett is the correct test for assessing harmless error i allah simply reiterated that the breck tests of soon as the question of whether the state  opinion was reasonable or not however if we do under that house have to defer to the state courts analysis do we know through the facts of this case if the court does were as consistent with innocence as with guilt the facts that they said other evidence showed about the shooting of saying shit and were simply fact showing that he was shot and that mr sharon was the person who shot him those questions weren't in dispute the man had another second to finish my thank you your honor and additionally the state court's opinion ignored all of the ways in which mr dr sherr testimony was harmful to show and focused exclusively on the ways in which it was helpful and in so doing that was an unreasonable application of chapman because the court simply cherry pick pieces of evidence without looking at the evidence as a whole in assessing harmless error