from the first trial should have been wholly excluded on retrial and then i will move on to issue three that if the court determines that the testimony was admissible defense counsel should have been given a wider berth to impeach her credibility ginger all this testimony from mr rush first trial should have been it's not admitted under one fifteen yes ten point four because it did not have the requisite equivalent circumstantial guarantees a trustworthy that's required by that statute and while you say why was it not in your estimation trust be the equivalent circumstantial guarantees of trustworthiness of the testimony you need that the unique factor in this case has to do with this particular witness she was by all ignition by all parties to the first trial had instantly a demeanor the state even wanted her she always the case isn't yes it is but it's also it is a factor in the smith case that they talk about their referenced in the melter case in the smith case that life testimony is different then then the admission of a transcript it's always different yes it is  issue that way she testified and again she was the critical eye witness the only eyewitness that the state presented the case so we do can request that the testimony be excluded however if the if your honour's do not believe that the testimony should have been excluded against your client and the second jury doesn't have to see you know i mean this is not actually looking at the demeanor of the with this but just hearing the testimony  would you know the impact of that testimony not be less so are impacted by virtue of the fact that at the individual herself was and i think it would seem that it would be you know more difficult with her and how she was what her behavior was like and then he allowed the state to present the testimony of a doctor who had interviewed her and testified at a competency hearing who told the jury that she was competent to testify and she knew the difference between  truth and a lie all the questions that you would ask a competency hearing that is not supposed to be held in front of the jury so big surety got an expert opinion that bolster her credibility this jury in front of this jury her in front of this jury so that his house her and on top that the trial just precluded defense counsel bringing in evidence to impeach her credibility such as the most important thing is the overly allowed testimony about the name of her psychiatric based on a different view of her psychiatric condition you think her psychiatric condition caused her to place mr rush at the scene when he really wasn't there i'm not sure that to the point her pretrial statement which was a lot of substance never once in her testimony and the defense really wanted to bring out information that right after that pretrial statement she had a complete breakdown she was clearly off for medication for the twelve hours during that day and she was completely disassociated and stalking indicative of the fact that she was on a downward spiral since the day she testified the defense attorney presented evidence of pretrial hearing that when the police the parents had to call the police because she was screaming and crying and crawling on the floor and she died from a reaction to a very powerful tranquilizer given to people who issue i mean the you know the road to the issue of issue one we would have her testimony at all if it was issue three then i would say at least the defense attorney should be allowed to impeach her with all the way to bring all this stuff up about her condition if you let this end then he would have to like got japan and testify for the state and those are just two separate things that would not have been the case so it seems like the judge felt he could let some of it in but he could let all of that in because then we'd be in the same place we were before and i'm just pointing out that i don't think that adulthood your hours of credit identify the issue or at least correctly characterize the defendant's argument before this court and that is you're being asked to once again review the issue  credibility well they want to slap on the label of the impeachment credibility but when you're considering the first issue you have to look here what the statute provide factors were met in this case and defending can that come before this court and establish that the trial court in admitting to enter all his prior testimony from the first trial  the symptoms of that disease and then i do before the jury that that deals with her credibility is the one case that they psych to and and that is  griner has to consider although this court and the first appeal characterized the evidence as close i think it was markedly different during the second trial when we head during the second trial that was not presented during the first trial was with the victim drinking alcohol i have no idea but it was admitted during the second trial and he admitted to beating the victim after he was dunked in the water and most notably he testif or he stated to if he bled that he took the fishing poles because he thought the victim deserve to be rock that is a damning evidence that was presented during the second trial so even if you as his attempt to describe what she may have been going through taking into that might affect the individual's testimony at trial but to the extent that events occur after trial i find it a bit unusual that you would be able to elicit information that  unique situation case and probably why there isn't any case in point but the defense does have the right to impeach on any relevant evidence and because this is a mental illness and she was prescribed this really strong tranquilizer right after her testimony she was still on the day she testified do you think that the test find itself might have been a triggering event that had nothing to do with what  tranquilizer was administered after the trial i don't know what it was that's what she just said i know when i was a minister we only know that she died of a reaction to it you just said that the tranquilizer was administered after that it's not just the the impeachment with what happened on the day she died all that's just part of our game again this is a unique situation where the jury didn't get to see her in the sentence of her illness which the jury was not allowed to hear directly relate to things like delusions where a person might not be able to recall something or testify properly and the defense attorney was not allowed to question the the doctor about the