argument i guess i'll join in and make an admission or a confession of my own thing mr young is probably right i probably did waive the right to attack the constitutionality of the motion to suppress i bring it because there was a little change within the testimony or from the testimony the officers then the posture that i believe the government was in prior to trial i filed a motion to suppress the government responded they responded not though that my client made a statement as a result of custodial interrogation they said that he volunteered the statement this is in their response that would be a record in tree number twenty seven page eighty one forty one that he volunteered that he was a felon that he volunteered that he carried guns for his protection but that was not the result of direct questioning at trial officer and it was flat co and when said both testified that one did question him the other one heard him question but i think mr young is probably right i only bring it for those reasons and i want to tell the court why i brought it but i think he's probably right that that has been way to this point especially since i didn't really raise it at the end of the trial but i'd like to ask court to consider the fact that this record didn't mamma testify  our position is that the district court abused their discretion basically what had happened in this case is that testimony came out from the officers that this was kind of a run of the mill sort of thing my phone when they found the pills or whatever on him had a cell phone and was able to like kind of an if you waited over turn on the speaker and called mom and then he called his mom and his mama perceived in real time what was happening in the back of that squad car why is that important well court found it was hearsay that what the mammas testimony would have been i should say mrs givens mrs givens testimony would have been it was hearsay well odd because this court is not hearsay that's a mis application of the law that's an abuse of discretion the version of the defendant's version did come in but the defendant's version was of course that he made a call and what had happened terms he got hit in the neck some to that effect that he ultimately told other officers asked for help those sorts of things but the mother heard it in real time and her perceptions in real time are not hearsay and that's what the court ruled below but assuming assuming for the purposes of the question that  in real time to be denied meaningful opportunity to present a complete defense he's got a six member right to a trial to put on his defense and we were very clear what the defense was at the beginning in fact that's what i think i waive the motion to suppress on the fourth amendment because we wanted to get be able to get into the voluntar of the statement all that argument would carry more force if the defendant had an elected to testify case well unfortunately prior to him testifying we had a jury out proffer of the mother's testimony not just one issue but multiple issues whether or not they're with violence or coersion i mean the police officers testified there wasn't any of that that everyone was cooperative mr gavin said no and actually that they got rid of the officers got really angry started talking about it when they saw to the phone company records and show that a call was made and we ask these days that stuff is all available isn't it absolutely and we did unfortunately i was not able to receive the six months after it happened i'd already been appointed i was eight months after this it happened but that would absolutely have been the right thing to do to to confirm that but the other way to confirm it is to allow a person that perceived it in real time to testify that the district court gave several reasons but one of them also was for zero three prejudice versus probative innocent confusion which is the quintessential trial judge discretion and i was struck by the fact that before the trial the judge when he ruled that he was going to let this thing that the government had tried to raise for all three at that point he says no this is you know this is all understandable and then when he gets to this mama testimony which is whether or not it's hearsay it's at least a couple of steps removed in terms of what she could hear and whether it conflicted him why isn't that the quintessential trial court ruling zero three applause well in terms of the balancing test there wasn't a balancing test judge folks ruled it was more prejudicial than probative he didn't say why he didn't go through that act and when when this court reviews the district court and the united states versus adams which is a rico voting fraud case so it's not not a like in the facts but it advised that in the review that we need to maximize the probative value and minimize the prejudicial effect so that's where we are now in the fact that judge district court judge didn't even do a balancing test doesn't mean i automatically get a new trial or anything like that but it's something for this court to consider because the test is not it's not whether or not the government's case is heard or anything like that it's whether or not there's a risk of unfair prejudice and i'm not sure what that prejudice would have been since we're talking about an individual who is testifying about what she heard in real time and i take it a step further i think she i think we have a right to put on even late testimony under seven zero one we're talking about what she perceives in real time we're talking about whether or not this would be helpful the information would be helpful or instructed the jury about backs that are at issue and i describe some of those facts that weren't issues that i had already issue or anything on the record about whether but for the statement to be out his admission that he was a felon whether he would have been arrested or not there really is nothing in the record about that you honor i suspect given the project safe neighborhoods in memphis tennessee that he would have been but that's just my experience and i can't deal with this and that is relevant in a way because had he been arrested in short order and they would have known  was a felon i guess that's somewhat i mean at that's absolutely relevant but whether or not that permits the court to restrict are putting on of testimony and testimony of a witness that perceive things in real time i think that kind of begs the question i mean perhaps they would have found that out we conceded a trial actually questioned whether he was abuse this is an unreasonable force the question is the information that was solicited and the manner that it was all listed and it's sort of vamose to an inevitable discovery kind of situation because if he had been taken to the station house at real reason for that he testified that he did that he was struck by an officer that is mother heard that he was that his he had called his mother at the time and that happened right at the time where the motive was creative for a man to say oh yeah sure i did it i just need to get medical help i'll do whatever you're saying stop hitting me whatever that is and again you're right this is we waive the motion to suppress but we're talking about our theory of the case of the defense has a right to put on all the proof necessary for a real comprehensive defense and that defense would include witnesses like his mother it is his mother she's subject to cross examination and we even asked for limiting instruction judge could have said well you know i'm split but she you asked her questions about what she heard maybe not the words he said something to that effect so that way it's not an all or nothing thing but i still would present to this court that we were talking about the defendant's a criminal defendants right to put on his proof and in a case like this where it doesn't appear that it was hearsay that even if it was hearsay and i do not concede that even if it was hearsay there were proper purposes to present it motive reason for him to accept responsibility for crimes he didn't commit rehabilitation the government spent quite a bit of time talking about jail calls and their perception of the government's perception and maybe not the jury's perception was that those calls were admissions but his credibility is at issue and we reasonably could use the mother's testimony to rehabilitate him at least as to the fact that that phone call was made and maybe as to the other things as well  young makes the point that in terms of it being the ruling based somewhat on confusion the fact that the defendant's testimony that he was had only once and his mother's to make those distinctions since we have someone who is testifying to what she perceived and she testifies that say she does testify in the jury can discredit her and say well that's different than what i heard or they could credit her and say well that makes sense they could discredit defendant they could credit the defendant it's up to them the court has got some fact finding role under one zero but it's under one for a and b whether or not you know is she competent as a witness i mean if she were blind and testified to what she saw she would be competent if she's deaf and she testifies what she heard she would be competent but i think taking that next step and deciding well this is different than what i heard before is a credibility determination that should have been left to the jury not and for that reason i think also that the district court judge  when he reduced the motion to suppress for the purposes of trial trail and to the district court not abuse is discretion in a school in the testimony of the defendant's mother being that that testimony amounts of hearsay speculation and on the fourth through the pope a value was substantially outweighed by the danger of unfair prisoners defense defendant basically conceded to issue one the motion to suppress a want to just note that felony or a misdemeanor on a tennessee law if you convicted felon it's a film an offense as well but if you're not a convicted felon if there is no permit then it's a misdemeanor so the defendant was going to be arrested they no permit no i'm issue of the trial courts exclusion of the defendant's testimony going directly to the fin its mother testimony going directly to the four three analysis the mother testified that she heard the row phone object as testified to defend its mother but you can't keep testimony out because it's inconsistent with other testimony correct under the four three analysis that far being that far exceeded the defendant's own proof at the time of this trial there was a significant national attention been brought to the issue of police misconduct and actually a week prior to this trial there was  a big issue regarding police miss misconduct and being that that testimony which far exceeded using a foreign object testimony that even the defendant would testify government if the court position holds that the it was not there was error however it was basically harmless error being that as a core know it the defendant did testify that he testified  jail phone calls that were introduced where individual who he was speaking to about a name of blair asked the question was he was employed whether he was with if he was in possession of the firearm he said three he said yes  did you reference the the existing situation i take it in in memphis with regard to police are you talking national national but ok but do we have anything in the record that the trial court added that that feature of inflammatory to his analysis is anything in the record about that no you ok and had you did you make it in or you moved your filing or that are post hoc rationalization admitted actually the medical records showed and this was through a keeper of records that he wrote that the defendant reported that he had been struck while in the police car in the neck and that he had pain in his neck and had numbness in his in in the corresponding hand  no no no medical expert testified just a keeper of the records that is in the record also with reference to whether or not this is harmless error again that's the court to consider this sometimes it's not just whether or not justice is done it's whether or not there is an appearance of justice being done and in this case not only did we have kind of a late confirmation that there was custodial interrogation without the miranda advice given first boy also found that officers would take the stand walk outside go tell the next officers what was coming very unsettling to me much more unsettling to the person where it cements as united states versus august givens about whether or not the system works and whether not the system will work for him and i don't mean just winning it's actually that justice was done and so in a situation like this i think terming it's been harmless error when a person is not permitted to put on their full proof and when that witness is not somehow not competent to testify but a person actually perceive something in real time i think we find in abuse of discretion it was not hearsay it was a mistake in the law but moreover we have the defendant in the individuals that are present in the courtroom hearing that the court is basically going to allow testimony from officers that consult even though it's allowed to ask about that but but also the defendant hearing that and knowing that they got something to the court also consider and if there's any further questions i'd be happy to answer them was up one of your realms of error of the officers consulting or is it just that mr ricks well it was it's in the record but i mean on your appeal are you i mean we should reverse no but i think you can consider it when we're talking about whether or not the error is harmless in terms of whether or not that justice the perception of justice was done i think the court can consider for that perception i did not raise that to say that somehow the officers were less credible because of