knowledge about that moreover more importantly he had no in evidence or noise testimony about the recording process itself he was unable to establish that the recording process was accurate as a silent witness the requires here the female caller was never identified and she didn't testify and also officer english wasn't a party to the call and he didn't listen to a lie so the alternative theory or the alternate way of going to foundations would sound when it's theory and what that requires a showing of several factors including the capability of the recording device a common competency of the operator the proper operation of the recording device and if recording was preserved properly without any alterations or deletions and s so we have no personal knowledge for him being able to recognize him by the ways you also say he had some experience in this office or english thing yes some experience working in the jail where the call took place and he said he knew from prior experience that only one person was able to make a phone call from this max to see unit at the time i was over officer english was not in the jail at the time he did not testify that he knew you are the new structure it was in no evidence that put mr ostrich as being the one inmate allowed make a call at the time this calls plays so he said nothing about what was going on at the time of the call the other thing about officer english test officer english is testimony he testified he was trained in using the secure its platform that was the platform the system that day used to record the calls and he said he knew when to call up and he called on his computer use it to listen to it from his computer and he was able to burn a copy to a cd he said speaking then as an end user so he was able to access the information after it was already recorded also english had no testimony at all about the recording process itself he wasn't able to say anything about the capability of the device that was used he wasn't able to say anything about whether the device for recording was in proper operation at the time he was not able to say that the recording itself was made without any changes or alterations those are all factors under the silent witness theory that he was unable to speak to he didn't say that he was able to burn the copy or behala growing poppy of the recording straight with this without any alterations but again that's that's missing the point of the recording process itself he just speaking after the fact after it was already recorded so there's nothing from officer english to talk about the recording process itself and whether or not it was accurate now the state wants to do an end around the foundation requirement they want to look to the content of the recording itself to say well of course this copy was accurate first in the brief they point to the fact that the collar use of the name  cannot use it's hearsay of someone identifying themselves by name to identify the caller unlike in people versus saints or the case that the state says we don't have any sort of unique and number being discuss there's no voice identification of an inmate as there was in that case all we have is this caller saying his name is renzo and we're dealing with a situation where someone is in prison presumably for drugs there's certainly a potential motive so why to give a false name to try and put blame on someone else for for possessing drugs at issue here or maybe this involves a totally different set of drugs  talking about slab doesn't give us any indication that we're actually dealing with this case with mr upchurch being the person on the phone call so really what it comes down to is that there's no evidence connecting mr upchurch to this record and again there's nothing saying that the recording process itself was accurate and for those reasons this was an inadequate foundation for the don't think they can come back year because of the importance of this piece of evidence in the state's case in closing the state got up and argued that this phone call was tantamount to an admission of guilt but the caller was basically acknowledging possession of the slab of the twenty eight gra crack cocaine when they're doing that they're arguing that this is the best game for them that this is what shows they have the right person if you take that away there's not much left there was no forensic testing marijuana charge there was marijuana found in the crack found several in the same bedroom and the jury could not find enough evidence to prove beyond a reasonable doubt that possessed the marijuana the marijuana wasn't ever discussed on the phone call only the of churches presence in the room at the moment the search warrant was executed which applies to them both items and then there were so there were a couple of pieces of mail in the back in the room and that was what they used to show the constructive possession so the evidence was the same as to both the crack and the marijuana with the one exception of this phone call and obviously the jury wanted to hear it twice in deliberations so you just they're really putting a lot weight in the call in finding guilty of the possession of the voice whether heard firsthand or through mechanical or electronic transmission or recording my opinion based upon hearing the voice at any time under circumstances connecting the speaker the saucer here said i knew the guy's voice and i could recognize it also  and they said the defendant her argument the essence of a proper foundation because no witness testified to keep going even devise the proper operation etc the killer court rejected that it said the ability of the defendant to make the call on his recording provided sufficient evidence the system worked properly and then wayward said when the defendant presents no way to evidence of tampering substitution or contamination the prosecution need only establish a probability that those did not occur thus any deficiencies would go to the weight but i believe they did i believe that it didn't identify the woman but we're not terribly concerned with that person as we're concerned with is this recording a i would never feel comfortable going to prison meet i have not the slightest hesitancy in saying this is overwhelming evidence there's there is no question your honor it's my strong contention in a reasonable world that was  should you know i think the question's a little awkward in that we don't feel comfortable i don't you ever would but i think you would feel that you were not real real good that you were justifiably convicted on evidence like this actually it's from your mouth there  and when the defend then presents no evidence that makes the state's case easier you know the intended doesn't have to obviously but you know there are hard choices to be made in life and in criminal cases and if you have good defense evidence maybe you ought to propound you don't have to it can be held against you that you didn't but it might be in your best interest do so otherwise you're letting the state's evidence go under budget with a lot of dots weren't connected about the accuracy of this call they could have called someone who worked in the jail at the time familiar with the recording process to simply say yes this machine was operating properly and the 's a foundation for the actors that's not that's only needed is something for somebody to say i'm familiar with how this recording process works it was working properly at the time in saying sir you've got a situation where the person from the jail comes in and testifies are you sure this is him because i was familiar with how muslims operating is how the system operates the defense there was required to put in the personal identification number and there was a voice matching system on place before the basis to say here's how i know that it's mr upchurch so in this case it isn't it's not about whether the states convinced that this is mr upchurch on the phone it's whether they laid the foundation trial here there are simply too many don't ask questions about the