reiner was a harmless error and this court's precedent makes clear that it was not because it was the most important evidence in the prosecution's case against my client and because as this court has said in prior cases the evidence w be materially weaker without that evidence the prosecution's case would have been materially weaker without that unconstitutionally admitted evidence against my client the standard in this case is set by the question is did this unconstitutional mission of testimony have a substantial and injurious effect or influence on the jury's verdict and there are many cases in this court confrontation clause cases that address that standard and apply that standard and they go through the five van arsdale factors that apply to confrontation clause cases and when this court applies those factors as you do in the brief the result is clear this was the most important evidence in the case against my client that's shown not just by a review of the record but by their prosecutor's reliance on those statements in both the opening and the closing arguments there was no physical evidence against my client there was that the owner of the owner of the gold shop is they believe it would be you it would have been received at the gold shop that's right so i don't know whether the receipt was located but it step to the gold shop i mean it relates to the gold shop that's right the gold shops where the murder  know that's not right that is where the jewelry was actually taking place yes that's right and there are two important points about the receipt use the word purportedly i think that's exactly the right word it's before tiddly by the prosecutor ok we don't have the receipts in this record the prosecutor says this is a signature there's no thumb print no fingerprints from my client were found on that receipt his name does not appear on the person that they received in evidence it's not for this court because it has not been transmitted with my understanding those this was supposed to be a signature or the date of the murder which is i think the rd but there was no expert testimony that said this was your client's signature is that right came in on objected well but it's still statement of counsel it's not it is not evidence that's right so the jury in the state court was allowed to figure out if they thought it was the signatures is that what happened that is true the jury was allowed to figure that out but i want to make a very important point about that receipt the receipt does not say that whoever was the signature signed that receipt sold the ring that belonged to the woman who died ok didn't tie it to the ring ok that's wrecked so the most it say was he was in there in part something that if we were to conclude that this year if you got past that i mean it shouldn't come in at all obviously but that he might not have objected to it because it was the other evidence that was proceed that for some reason came in absolutely and that evidence what are we talking about there i don't so that is and i should be clear the evidence that we're talking about that came in that was unconstitutional admitted out of court statements from the ok all right i'm still ok so it's true if we were to conclude that the jury read the signature and decided it was the same as another signature that was authentic a dubious you don't really want the jury to do well sure ok but let's say the jury hears the other important part we don't know that the jury actually did do that ok and so even if i under mr going law it was acceptable for the jury to have done it we don't know that that's what happened because of that superseding evidence that judge rogers just referred to the statements that came in for some reason from the gold shop owner the jury didn't really have to look at the receipt the jury was told that the owner of the gold shop said here is the ring that mr reiner gave to me on the day that this took place and then another witness said the the owner's testimony only in part and that's important it would only corroborate it to the extent that it would place him at the gold shop on the day of the incident not that's very important it doesn't show that he actually sold the ring and so even if this court were to conclude ok the jury can look at that signature that we can't see and think that it was his signature that doesn't get anywhere close to he sold the ring there was an argument by the state and it's proof that i'm sure will come up today that that receipt again if we credit the receipt as has the receipt said two dollars worth of gold was sold the ring was found in a costume jewelry box that the state will say that's worthless jewelry and so therefore the jury could infer that what he sold was worthless the ring was worthless ok probably the same thing and it doesn't quite work because the tin of jewelry the costume jewelry i just referred to had a variety of items in it that's the prosecutor's language there was no evidence to how many there's no evidence as to in the period of time it was two days between the day that this incident took place and when the detectives went to investigate the goal shop how many other items had been sold how many other people had come in it's completely circumstantial evidence and it really requires quite the inference to conclude that it was in fact her ring that was sold by mr reiner the only evidence that put that before the jury was the evidence that never should have come in these statements from every single kind of violation it just so happens that i just wonder whether maybe it's it's a easier to meet because of because of the difficulties that crawford created cases such as this i don't know that i think it's easier to to meet and also the van arsdale case preceded crawford it's in one thousand eight hundred and six case crawford is two thousand and four so they are still just said when we were viewing confrontation clause cases here are the five factors to consider it's not really a test it's easy or difficult to me it's five factors that we should consider and then brecht came along and said on hey vs your view here's how we determine whether an error is harmless that's that substantial and injurious effect or influence on the jury's verdict so this court many times has combined those three tests and said ok tavi is your view we ask whether there's a substantial and injurious effect or influence on the verdict to figure that out we look at these barriers all factors and they're set out in the brief and again they've been applied actually number of times by this court one example is the fulcher case i think it's from two thousand and six and they show something that we say a number of times in the brief the inquiry is not if you remove this one piece of offending evidence with the rest of it be enough to sustain a conviction and sufficiency review that's not the question and you can see that both because the court has said it in amber of times and because of the way the court has apply the test in the fulcher case there was testimony properly admitted where someone said i saw mr fulcher commit this murder that was set aside from the offending evidence and so even though that was allowed in it was part of the remaining evidence this court still said that the offending evidence other out of court statements by the girlfriend of the defendant had a substantial injurious effect on the verdict and the idea there is the jury had the evidence as it was put forth to it and the question is did the evidence that is being discussed the improperly admitted evidence have that kind of effect on the verdict the question is not what would in some hypothetical case the jury have done with the remaining evidence and so just to briefly go through the five  take much of the court's time the st factor is how important is the evidence every quarter of you this even the state court says this is important evidence went to the heart of the prosecution's case the state court said this court has said where evidence is significant to  prosecution's case it cannot be harmless error under that chapman standard ok even the state in his brief says this is important evidence so there's really no dispute about that nd question is whether it's cumulative and that's where the discussion of the receipts comes in the state will say it's cumulative evidence these out of court statements because their receipts show something they're going to try to say that they show the same thing that the out of court statements you but that's not true the receipt even if we credit even if we think the jury looked at the receipt and said yes this is signature only gets you to the conclusion that he was at the pawn shop on that day not that he sold the ring and that's the important evidence because that is the only thing connecting him to the crime technicians and one fingerprint examiner they both detailed everything they did to canvass the crime scene go through the receipts at the gold shop to for fingerprints didn't find any fingerprints couldn't match them to his the only thumb print that was matched to his were from other receipts from prior dates at the gold shop that we know were his and so i do think that's telling that it's not as if there were no fingerprint examiners available in the state of michigan at this time they came in testified at trial and they couldn't find his fingerprints they couldn't find  a so that's cumulative rd factor is whether there's anything corroborating it it's really the same analysis the only difference i think is that sometimes there can be evidence corroborating offending evidence but it doesn't quite get so far as to be cumulative here there's  neither th factor the state doesn't contest extent of any other cross examination here there was no cross examination whatsoever mr going to ascii and then the th at th factor i think we've discussed at some length the strength or meaning evidence and it's just not very strong so effect or influence on the jury's guilty verdict in this matter the answer that question is no michigan court of appeals reason we're determined that these improper riemann statements were harmless error and this court should come to that conclusion for three reasons st the facts of that improperly and minute statements established in this case were also also established by other properly and happens and that mainly includes the receipts that have already been discussed here today those receipts there were i believe three or four of them the st at least two receipts identified the petitioner joseph rayner by name and had his thumb prints on those receipts different dates and not dates of the murder correct your honor but this shows that he was a customer of the punch up doesn't meet murdered this person right but then the receipt from february rd does show that that that receipt had contain a signature which matched the other receipts ok i mean there is no expert testimony that that was his signature and the only testimony it was the prosecutor's argument that looks to me like it was a signature which is just totally it was right and well your honor different the writing you're saying stick for signature is expert testimony is not necessarily people are totally qualified to rather such opinions and i don't think that's the law in michigan maybe it is but i don't think there's a specific case that signature says on the receipt of his signature and it says he received two dollars for items he brought in that day that's pretty that's low value for gold it's now well it's i don't believe it's that it's gold might have some going on it was some sort of  dollars for something he pondered on the day of the murder and that establishes basically beyond reasonable doubt that he committed the murder no your honor along with all the other circumstantial evidence said the other ok what else you got that he's found in the area he's found seven miles away and he's picked up and taken to the bus stop well you know i mean your honor he was a remote area in the middle of winter where it is very uncommon to see anyone walking away as a from the murder scene when he 's less than half a mile from or say ok yes he's a half a mile from the house ok so you've got the receipt he's a half a mile from the area what else you got while then his father he's seen again i have another less than half mile from the  i mean really at this point it's really nothing your honor i would i guess i would i would respectfully ask you to think about what this would mean if you if this is nothing this is a man who has no business being in this area  couple miles to where he is they do a transaction it's a couple miles more at the bank there's a couple miles mortuaries dropped off at a bus stop and then the bus stop a seven miles away from the gold shop and he gives various excuses for why he needs to be dropped off near that bus stop like he wanted to meet a friend there or he wanted to get unemployment go to the unemployment office then he gets out of the at the car removes his cap which makes no sense in the middle of winter that then he goes to a bus stop he never told the witness that he would he want to ride a bus stop and he's he's making excuses he's making he's trying to throw throw the guy off to where he's going what he's doing and then the key part of this honour's he was the only one seen in this area in this remote area and then he was also at the pawn shop on the day of the murders already allow somebody to be convicted of murder and sentenced to life in prison based upon that sin of evidence i mean to me that doesn't even establish sufficiency of the evidence and that's not even the standard here we have to this side is whether there is a substantial injurious effect on the jury's verdict but i can't see i mean what this evidence that should have been excluded but but the strongest thing you have it seems to me is is the the three receipts the two receipts which could could cause juror to know what the signature of this guy looks like and that he sometimes goes to the store and then the other receipt which looks like it came from him because that's the same signature but but your post in council says those aren't even in the admissible and that they were admitted right and i think that's exactly the point is counts and then another object counsel didn't make an argument in closing argument because he knew the signature was exactly what i see that was the reason or he knew that there was this other evidence that shouldn't come in that made it something that was a moot point but either way i don't understand why we don't get to look at why didn't why isn't it in the if it's in the record why doesn't it go to the heaviest co missed well your honor this is what you say is the most important thing i do don't think it's the most important thing i think that could be more important not then the law then the time to even be in in the in the in the place where this rain came  in michigan courts they do not always and the exhibits is not always go with the record so when we get our pardon my ignorance is responsible for getting the state court record into the federal court and that's the government's responsibility of the state court right yes or seems strange well your honor again i was its weight i mean i can look at that and say oh that's compelling or i could look at say that's not compelling at all but i'm no expert maybe i'm not allowed to do that  well your honor i get and i the exhibits in michigan state courts don't travel with the record all the time sometimes they do sometimes they don't know what i would get if you want us to look at something in the record you have to put it cool then it's still the government's burden which is what the burden is about anyway but once if the judge has is in grave doubt about whether this had an essential tourism factor influence in the government loses correct but your honor we also have to realize that under dave's we still have to apply at the difference in this case ok you're arguing that and i think that's an interesting argument and i'm i'm inclined to agree with you that there and there's breck but but to me breck is a higher standard of harmless error that so if you satisfied breck you would by by almost necessity or have to conclude that no reasonable jurors could cannot debate that that was wrong and i just i don't think you can can do that in this case whether you look at it as standard or whether you look at it as under the  just simply don't think you can conclude that this this is one reason the application of the harmless error analysis or or that it was had a substantial injury is a factor influence and i think you you really have to look and again  rs counsel is a good job of looking at every little piece of evidence and poking holes and why it is that doesn't show his guilt but you have to look at all the evidence in total here and i just i don't think you can say that someone who was at the scene half a mile less than half a mile from the scene around the time a crime a place he does not belong there no one but he has no connection to that case and then is also seen that same day or also on that same day sells a piece of jewelry it just so happens that the victim's ring ends up at the very same place that he was that i mean i just don't know how you can conclude that he  other than he sold her ring that day and by that he murdered her too that's another inference by the way that yeah i have to say since he had her property that he must of murdered her i mean that and he was seen seven miles away means he must of murder i mean i i think it's scary again if we put somebody in prison for the rest of their natural life for those the at the pawnshop that would be some sufficient evidence trouble is that's all shown by confrontation violation it but it's also shown by the owner of the receipts well but not as clearly because there's no mention of the ring is one right but that is one thing to say he came in with a ring that is by testimony this the same or a very similar ring to the ring that was taken from the murder victim that's going to grab a juror but then you take that away and you just say well he was in the pawn shop it's just not as much or the woman the police officer also testified that he saw the ring and i was ten of low value jory i mean how many other people work how many other people's a possible that could have been in the shop and on the day of the crime and also within half a mile of the murder scene which is seventy miles away in a chain which leads to a conclusion and one step of it is tied like this when you have the confrontation violation evidence but when you don't have that confrontation violation evidence it's another weakling can stead of another strongly in his chain that makes the chain that much weaker it still there but it's a lot weaker her in the end to have that part of it and say well it's got several links but at least this one we have something tight that might be another juror i just can't see how that's not your honor i guess i disagree that it's substantially weaker i don't think it's weaker at all again not have a substantial injuries effect on the influence or influence on the jury verdict i would also point out that the prosecutor petitions counsel says he was using this statement several times and opening and closing it was actually  think you have any more question just very briefly as to the very last thing that my opponent said it's not sure that this evidence was referred to only twice in the opening and closing all the quotes or in the briefs so you can take a lot but i guess most importantly in closing the prosecutor