suppress the gun mr jones was seen holding more allegedly seen holding on august st when you love the gun the state relied on to show that mr jones was the shooter i'm july event direct appeal but if this were to be denied maybe on a post conviction i actually run a thing that there's plenty of evidence in this case to show especially with the state claims which was left of standing have an individual well a police officer in full uniform walking into a yard that he knows is he admitted that it was the backyard of the house a place that he is unlicensed to be at unless he is invited on it or has a warrant to be on that uninvited place he is unlicensed to be on that yard as as a police officer who specifically goes out a yard you don't know wh picture of evidence where there's supposed to be pictures of that of that pows that somehow lost it because there was also a photographer supposedly doing it so city lost  it is known that people have props but anybody can i you don't know this because there was no motion and you have no record very well what we but we have enough information to know that the officer walked up on their back yard because he was infested he testified to that so we have that evidence he testified specifically that he was investigating the noise complaint they stay him and his partner stopped on the street so i caught up with three individual and riot loud noise that was all in the transcript loud noise in the car and they were drinking beer as they stopped a couple of them ran into the house this one the officer decided and that moment only he decided to go into the back yard because his partner won with the fossil council we've read the record we know all of this but the point that we're trying to make yours or you might move on to the next issue because there are record clearly is not developed well enough to consider this and direct appeal indicates that the officer swapped and the officer walked into that backyard and looked through the window just because he wanted to see what was going on in the house with no authority to do so moving on to the experts and the lack of foundation the low  it's a case that relies on the fact that if you look in disk ace with the officer said is that as far as exhibit eight  dollars which were the cartridges that were supposedly fired from the same gun but no manch to a gun he said i was able to determine the exhibits were fired from the same gun by examining the individual characteristics and he says and i  believe the breech marks on the bridge face marks i believe there's nothing in it and he never explained what the breach face marks are then he went on and said that in here was in the sure mark as well as the bridge face marks  comparison purposes of exhibit one he found that exhibit there were five and six were fired from that gun however he never even this is the st time during that opinion that he says sure marks we don't even know what the expert must testify in terms of opinion or inference and give reasons there if they're off give reasons they're off this within the rule he has to serve the expert never gave reasons there off not in the foundation of his qualifications which was objected to and not indeed the opinion that he laid or he it up provided to the jury as to why he found the manch  just by saying that i believe it was the breech face marts and just by say using terms that he never explained or lay foundation for cannot give the expert the credibility of foundation be compared and has to be provided to as an underlying foundational question before and before you issue an opinion i'm not saying that he had to go through in the foundational part of his of opinion should have explained to the jury so they can make it up at a reasonable make a reasonable decision at the end whether or not a match was there explain what our breech face mark explain where it are sure marks this where the agent that's where the expert fell far short hunter never lay the foundation and and explain where these terms mean and how they helped him form an opinion in addition to that and on top of the ad d on cross examination things and redirect examination the state came out and specifically asked a very targeted question and or a loaded question no pun intended they asked you would put your work was fairly dated as well correct and he said yes what does that mean and the expert explained it was verified by another court qualified examiner it wasn't just me dead gives the impression that his work was and not their court qualified which court well for this is a very what about what about that term we like to use on appeal from time to time for for sure in light of the fact that it wasn't objected to and direct examination brought  of what happened with the way that he made his opinion and the way that then he claimed that it was verified by another court qualified examiner iraq hers it and he said he specifically says it wasn't just correct and it was a hearsay prob judge it's a hearsay problem because you cannot you cannot cross examine it's a crawford hearsay problem you cannot examine the person that is the court could qualify the un known court qualified examiner that was not just him and you would agree that crawford violations are subject to the high harmless error analysis right and that's what i'm saying that error was not harmless in this case and the hero of the error was not harmless because of the reasons that there was not proper foundation laid as well and then it was when you look at the taliban of how this case was what they read or what they potentially read in that transcript is the fact that mcneill said that there were two shooters that there were that he saw an individual shooting all the fans and that he saw another shooter shooting which bolsters blad nice testimony gladney is certainly is the only witness at trial that testified that he saw or didn't see we're not too of my client shooting at him out mr jones was not involved in the shooting of mr all fine mr jones supposedly was only involved in the shooting of m gladney who was drunk time i and running away from the shooting said that he didn't see who it is then said that he did see who it is then i guess when the part of the fender want to see him again and question him again he didn't see what happened cannot cannot carry the day for the governor for the state in a case where they have to prove a case beyond a reasonable doubt a person like death if you put all all aside if you put the gun or the comparisons aside that's all that the a reasonable doubt doubt proof it in any manner and finally the accountability are ours even in the most light favorable to the state no question jury could have found that mr jones was accountable or work in concert with omar williams this case who by the way was acquitted there was no testimony that they ever talk to each other ever worked together ever stood next to each other were part of the same well what you hear here is that the jury's however what you have here when when the when when gladly starts running supposedly that's when mr jones shoots at him he doesn't go to help mr williams is not even standing by mr williams from white understanding from the way i read the transcript is that mr williams was in one side of the of this parking lot and mr jones was in a different part that he thought that it is a possibility that he thought that the potentially here was the target of something potentially he sees mr goodlatte me and there was some testimony that they might not have been friends maybe he believe and that he was somewhat gaunt somehow going to be a target of something there's no test there's no evidence that him shooting it gladly maybe just took an opportunity to shoot him just because he shot it glad doesn't mean that he was working in concert with williams you have to show some sort of i would cooperation in order to be accountable if two people go and shoot the same person on the street for two completely separate reason didn't testified that the other examiner said such and such at most we have a kind of inferential hearsay here like an indirect hearsay where me defend is assuming that the jury heard the testimony about verification and assumed that some other examiner made a statement reports rejected indirect hearsay they said that's not really your say you need an actual statement in court and here we don't have one the nd problem is that the verification evidence wasn't offered for truth and you can see that when you look at how it came out in the trial testimony st on your act and we are as if it was an offer to prove that it was false i mean one of make them look better be admitting it was making him look better by showing the basis for his opinion not that it was true but we know that the basis for opinion can come in even where it would otherwise be hearsay and he's not saying believe me because someone agreed with me we asked does your lab require validation and he says yes it has to be verified by another examiner so he's talking about his procedure sorry about all the steps he takes and verification is just one of those steps are you going to court when all we did after and it was just the same essentially the same evidence that had already come out on tract which was not objected to  and then on cross when defendant himself brought it out and said was this based on your experience and training and the examiner says yes my experience and training and verification so he's he's asking that he's trying to make him look bad at the basis of his opinion and the examiner says well it was also based on this and then on redirect he just says was it validated yes what does that mean it was verified so it's really just it's clearly four pieces of opinion that's the purpose here not for the truth of the matter asserted but also it's it's just cumulative two pieces of evidence of a word come out the jury knew this two other ways before the find if i lay objection on redirect so no statement not for truth and square safford with rule seven hundred and five the rule says clearly an expert can testify to an opinion without explaining the underlying facts and that's what happened here and why i should take i actually did he did explain his methodology defend his being in saying you should have described these exact breach face marks what seventy five and the cases interpreting that say is getting into the reasons of opinion is a matter for cross so you know counsel didn't ask these specific questions here but because you have here to defend it's one who's found not guilty and the one that was found guilty of the gun and the blisters were you know big evidence in their case so what about your colleagues remarks and  move to suppress different statements and she did move to keep the cartridge matching evidence out on the ground that the science wasn't good enough surely she considered and had a good reason for not making a th amendment motion on the gun it's not i  suppress not if there was no good th amendment basis for and this was brought out of the post motion hearing the judge asked to use the word standing but he's getting at the legitimate expert is privacy yes defense of counsel twice how does he have standing here meaning you know has he got a right to complain about the search of this property and defense counsel doesn't have an answer he just says well he was holding the gun he wasn't holding the gun when it was seized the officers saw him through the gap you know and then recovered the gun from the washing machine so that was counsel's opportunity to put the defendant on explain how he had a legitimate expectation of privacy in either the yard or the washing machine so for example if let's say defending this friend's just said throw party here while the owner of the house was out of town no one would have a legitimate expectation of privacy was also got him standing in front of a window there's no evidence that you had to be in the backyard to see in that window if you could be seen from a neighbor's house or an alley he certainly could have couldn't have expected to keep his visit in the window with his guns in his hands private another possibility is that partner was affecting a valid rest of the man who ran into the house there's no reason to think on this record that smith was you know just running in the backyard to look for evidence of criminal activity what the record suggests is that when the officers came up people were going on the sidewalk one man dropped his beer and smith's partner follow that man we don't know but if you had reason to arrest him say he knew we had an outstanding warrant and he tried to arrest him outside in the man ran in he could have followed him in under how pursued smith the record suggests just went to the back yard to head off that man and his he ran out the back door that's likely purpose in going out there so that would be reasonableness analysis of whether he could conduct this limited intrusion of going through the backyard balance against a strong law enforcement interest in preventing an arrestee from escape if that's what was happening that certainly would have been fine but again was taken out of the jury room the judge looked at it directed the parties to look at it said make your best arguments and the judge made findings he says no one is named there is nothing cold but story to the defendant here and so there is no prejudice defendant has a testimony is credible and of course that was corroborated again by jones that physical evidence at the scene that shows two parents one of the guns came back to the one that defendant was holding at the house party there's is testimony that i asked that all the time i shot three times which matches up with the medical examiner's testimony that he had three gunshot wounds and then there was also a surveillance video that was played for the jury and you couldn't make out everything exactly what you could see flashes coming from two would like to address st the issue of if officer smith and the other officers were legally on the premises and in the house i think there's plenty of evidence here that the officer smith walked on to the back yard the looked in the window and decided to call his fellow officers for backup if he had a warrant that would not have been testimony he would have said i stayed there and waited for somebody to come back with a warrant so we could walk into the house he would have said something to the effect of i was waiting there and i just need down and hiding down by the window and then when i heard the sirens of my of the other officers arriving i put my head  by the window and saw mr jones walking out of the room and other people spoke of running away or scrimmaging away he didn't say that mr jones was running away and then he said that he wa did he walk into the house with his fellow officers there is no testimony that anybody had a warrant there's no ten that's not because they didn't bring out a motion to suppress because that is the testimony during the trial they would have brought us a search warrant for that house too it's not inadmissible it's absolutely admissible if that officer had a reason to go into that house that was legal that was consent there was a search warrant this state well there was testimony that there was a party at the house just like in abrams that there was a party in the house and i know people versus abrams in all cases but it's very similar to the officers walked into a house and the rest of  heard i don't think i mean i think we can make reasonable assumptions i don't think that he was there threatening anybody with those guns as the test anymore as it was supposing he welcomes he was taken to said there was testimony that he was being potentially correct that but there is enough evidence here in my opinion or our humble opinion that this this that is that shows of violations of th amendment rights and basically incompetence the state didn't even bother with that prong in their response because they know that it was gross incompetence and there is a reasonable proper it probability that mr jones would have been acquitted had the evidence been suppressed absolutely because without the gun there's no matching of the bullet and without the matching of the board the only thing that they have left in their hands is mr good gladney that's what it is and finally to address w counsel said that with the verification evidence i don't know for what other purpose the state would ask that question and redirect if it wasn't for the truth of the matter