determined in this case that there was no violation of the confrontation clause for two reasons first because the trial court correctly found that carl cooper was unavailable to testify and also that any error stemming from that decision w one which i think we can dispense and we can go on to the more interesting one you argue of so i understand it according to the following the state court decision that any i hear that any era here was harmless and essentially the argument is that mr cooper testified only two counts for which the defendant was acquitted to understand it correctly in impart your honor i'm happy to expound only the part of the part of the part where that is what the the court of appeals ultimately determined was that he testified two counts that he that the person or excuse me that mr morris was ultimately not convicted of we actually submitted that he contributed to testimony two three are because it just seemed to me reading it he was driving the van from her house back to get another car and that's when the shooting occurred and he testified that he that that the defendant  forced into the car with along with her son so that's part of that's the kidnapping right yes and at least one or more felony firearms took place in his presence probably this saw with a dangerous weapon and carrying the dangerous weapon with unlawful intent the the i don't think it makes a difference but but that being said i think that we can all agree that the four corners of the record here leaves a lot to be desired about what occurred in getting mr cooper to trial to testify so with that being said would i would rely on my brief for those points and to go to having having said that there's nothing in the record that shows there was any effort at all and in concert it seems to me when you say it doesn't matter that this occurred during trial as opposed to before trial which of the facts and all of the other cases that have been cited to us i think it seems to me you just gave your case away well that's an interesting point that frankly i hadn't contemplated i don't i don't think they get anybody careful what you say in answers to questions lesson learned you got again here's a simple fact of all of the cases that i can find and i'm going to ask your fellow counsel as well to deal with whether reasonable efforts were made  the availability of a witness was discovered before trial and presumably there was time to do something about it here the record seems to indicate that everybody thought this guy was going to testify up through the lunch hour and it was only after lunch that they found out he was unavailable so it is there a case that speaks to the efforts that are required if any you want to witness becomes unavailable during the trial as opposed to of the advance not that i'm aware of so so given that fact i'd like to retract my answer to that question and say that and say that and that that there's no clearly established supreme court precedent that this decision could be considered contrary to minute of the problem usually the two step here is that the prosecution or whichever side is going to present him says well your honor we're about to call mr cooper but we can't find him and we've done such and such and judge you know thinks about it and makes least for once on the record here and i don't know if there's if i'm missing something or if there's extra record evidence about what happened over lunch the judge says well we've only got one witness left i know who the witnesses i know that he's been picked up i know we can't get him here today and i told counsel i intend to proceed as though my sort of hypothetical motion had kind of been made in chit chat does that seem to be what happened or is there more any other place in the record beyond what i was just on and what i was just reading was from the court of appeals but i think they're quoting the trial court at that point yes your honor i've reviewed the record and those two to three have but in effect it would have been exactly the same as if the prosecution you know had done had done the two step and step back and said well your honor as you know mr cooper is unavailable and we can't get him here today because he's over in southgate and if we want to go ahead with the trial we can't get it right now i answered i think that i think that from those two to three pages of trial transcript that we can make reasonable inferences about what happened over lunch there were clearly conversations between the court and counsels about his absence and what perhaps could go into getting in there but in the black and white text of the record we have very knew from the transcript is probably ten or fifteen minutes of testimony and of course the defendant testified that by i think before four o'clock they dropped the case was i mean does that make a testimony was any different would have been any different i don't think so on the record but secondly is there something about the judge's ability to control and manage his own docket that ought to cut the judge in this case a little more slack we've added something that might make a difference between the fact that this occurred during trial rather than came up before trial i mean it absolutely could and i think that i think that the record is clear that the judge was controlling his own docket in that in this case and and the court was obviously wanting to get the trial done yes but but the trial court's actions and concerns about its own docket don't actually go to the test and barber which is prosecutorial efforts and to to get the unavailable witness to court and secondly whether or not it's the principle evidence against the defendant so i understand the concerns about the trial court and with its own docket that that in a political to the barber test but part of that though is that there was prior judicial testimony with an opportunity for cross examination which here i take it was there to the full degree that yes your honor it was an ardent cross examination and while the entire examination that happened with mr cooper happened during the preliminary examination there was a chance for for cross examination   was it clear that they were going to be able to finish that day that is the defense hadn't even started know that you didn't know whether the defense would you know go short or long and we know anything about it was their witness list that the defense  was the only defendant the only witness but no surprise witness i'm really sorry i can't speak to that so my apologies i would being that i have a short amount of time left i'd like to skip the harmlessness because ultimately even if the court is troubled and  frankly by the lack of record we might be troubled to however this this case can't move forward with a b s relief because any error here was heartless and that i think that is outlined squarely in black and white in the record and i would like to point the court to just a few things that demonstrate understand how there can be true at least with a couple of these counts because all you have is the word of the defendant versus the word of his wife or ex wife and then you have cooper to add whatever he's going to add respectfully i disagree that that's the only testimony that supports the kidnapping charge and if i could outline what what that is  yes there is the testimony of the victim donna there was also the testimony of her nine year old son who was also a victim but that doesn't make their testimony on important there was also testimony from willie whitfield who was a who was a witness up in the apartment building he witnessed mr mirecki dragged on out of the apartment by her hair with a gun and taken down the hallway also when you can going in with the gun in the here and casing her that was th allegedly pointing the gun at her and then the discharge of the weapon no your honor they do not and if i can answer your question the the crimes that mr maritz were can was convicted of  also happened in the apartment and the one of the felony firearm charges was possessing the gun at the time of the kidnapping yes if the kidnapping is dragging her out to the car and putting her in the car cooper clearly witnessed that and testified that  assault occurred in the car right the assault that he was convicted of your honor occurred in the apartment and just to point out how do we know that from the record that we have we don't even have the charging instrument in the c b s case from the record that we have what i can point you to is the i don't have the page id numbers but it's the prosecutor's opening and the prosecutor's closing she outlined every single count in both statements and she outlined what evidence supported every single cams so the assault that happened in the car with the gun that was actually going to be assault with intent to murder that he was ultimately acquitted of so we we we do have the jury instructions that they don't make a clear of those we don't have the charging instrument so we have to look at the at the opening of the clothes right ok this was an absolute violation of mr moore it's confrontation clause rights and i think it's important to keep that in mind this is not about docket efficiency this is not about moving a trial along i think the record it's absolutely clear that that trial was moving right along in fact the judge commented several times during the trial to the jurors and to the attorneys we're making good progress here is revenue might be right if we were looking at this to know but you know that were constrained by a i do so if we're looking at the your claim is this is either contrary to or an unreasonable application of unreasonable application now the case that you primarily rely upon is barber right yes barber deals as i understand it with a person on a witness who was discovered to be unavailable long before a trial started certainly before the trials and i believe that all the other follow on cases of which there are only two or three that anybody citing all involve on availability that was discovered before the trial right yes so what case do you cite as to a stale bush is that the same attendant obligations that apply to the prosecutor before trial also apply to the prosecutor during the trial i don't have a case that addresses that issue specifically but i think it's a false issue judge because the issue of confrontation clause rights often arises in the middle of trial when witnesses don't show up or frequently arises how is that at least judg mckeague is saying that we don't have any cases right on i have a thought about that in the head is that the kid the the trial judge resolves the issue in the appropriate way around i always do things right so nobody to the court of appeals for your review if the trial court kids appropriately resolved it with a short adjournment in this case we were talking about the next day all right we were not talking about a week a month and the next county over so it's not it is thirty nine miles although it may be true but going back to put it in the supreme court cases they all say very clearly that the law has to be clearly established by the that the prosecution may not present required testimony until the prosecutor of a witness deemed unavailable unless the prosecutor has made good faith efforts whatever that might be given the fact scenario in vamps what's missing here but nobody with the whole point we never got to that because the judge said in effect we are going forward courts tend to give a great deal of deference to the judge's control of his or her own docket you know very short periods of time between a capital charge and trial and lawful but it just seems to me when undertake diligent and do efforts but here all we have is a judge declaring logistical problems we're going to go today  we could be or tomorrow i think this would be a very different case and i probably couldn't be standing here with this trial prosecutor who presumably knows what she has to do if if there is some missing witness what did she has to to create in order to withstand further review all of your argument presume that the holding of what happens before trial applies equally during trial and you might be right but where do we find it i guess your honor i don't i can't think of any principled reason why it wouldn't apply because you have a group of citizens that are impaneled in a jury box you don't want them wandering out and around the streets while you're waiting to find a witness the judge has a trial docket he's got a bunch of cases presumably lined up behind this one there are reasons why we defer to trial judges we don't know oftentimes we don't even know why they exercise the discretion that they did to keep a trial moving in accordance of the schedule in this trial they were all going to be back the next day it's done in michigan it's kind of a rare and unusual situation on my experience a small corner of north usually the time where that's the last thing the defense lawyer wants to be cross examined even though there is the opportunity and doesn't the fact fact there was cross examination at an earlier stage i mean just seems to me quite candidly always tell me why i'm wrong that where you have a situation where there was cross examination they testified at the preliminary exam and then weren't cross examined at trial you know sister counsel has indicated there were several other witnesses there were the two teenage children there there would have been caro cooper in there with the witnesses for the counts that mr cooper had no information about so what was the truth preliminary exam transcript a full in fair opportunity no because by the time you get to trial you have all these other witnesses who were in the car with colonel cooper mr moritz and donna moritz an who are testifying to other things that happen in the car that never come out at the preliminary exam because they're not called to testify so i repeat i cannot concede that there are other things that that came up during the trial you're focusing on what happened in the car so we'll stick with that for a minute are there other things that came up during the trial that didn't come up in the preliminary exam about what happened in the car that your client disputes anything that cooper had to say he already had the opportunity to cross examine on that right well he wasn't but he wasn't cross examined when he was cross examined so the only thing that you could say is well i would have asked him more questions about other things that were not the subject of the direct examination my right about that if if mr cooper had testified at trial the prosecutor was going to direct examine him on everything that all of the prior witnesses who testified happened into the car we don't know that that's not the record you might be right now the record well she did that's what she did do you can't do that he wasn't there she can only read into the question she asked  preliminary exam she didn't ask him any other questions he was not there no i understand what the court is saying you're assuming the prosecutor would have gone into other things with cooper and then you would have had an opportunity to cross examine on that i don't see how you could possibly be prejudiced by that because it didn't happen now you could say that was standing what the direct examination was on the preliminary exam i intend i wanted them to see his face because you could see the that he was lying when he gave that testimony during the preliminary exam you could make that argument part of your argument it would be part of the argument when there was the argument made by defense counsel that actually is the argument you made in the pleading so fight for right now you're going beyond that and saying it's not just we had a right to have him see it shifty eyes when he testified but you're saying we would have asked him more questions so i don't know that this really even gets as is an official part of our evaluation here but what other questions would you have asked him about that would have assisted in the defense what i'm looking at with mr cooper's preliminary  i agree with wright and yet but the what however many counts that it touched upon there was the opportunity to ask him questions about that in the cross examination not that i don't think not on the counts you know that would depend  if the complaint simply had one count and the indictment has multiple columns or then it's almost race of the law quarter that had those columns been spread before the defense attorney in the examination then indeed he might have gone into them or she now their trial all we have is cross examination the one column and so the multiple columns there for your honor you know it does make a difference  mr cooper testified about seventeen testified as to facts going towards seventeen of those felony counts how many were in the original complaint record i believe there were twenty although i have some memory but there might have been twenty one in one eventually got a visit out early as unlike my hypo where there was one called the preliminary in the initial complaint and twenty down the road there was a match up actually there was some version of that because originally this case was charged part of it was charged in mccomb county and part of it was charged in wayne county because as they travel they moved over county lines and mr moore it's what they actually are green in both counties in the wayne county he's got dismissed in favor of the addition of the county it says continuing offenses in the mccomb county case and that probably makes no difference but it was a complicated start to the case but what of it would have if the cross examination occurred in the first one and not the second one no the cross examination only occurred in the county case the second one yes you know so what what count was a that he was indicted for that he wasn't asked about during the preliminary exam where there was an opportunity of cross examination that you think prejudiced him here i can't answer them we even have to answer that to be able to elicit some prejudice  this is my argument prejudice but there were mr cooper testified in the preliminary and see him on seventeen counts mr maritz was convicted of one two three four five six seven of those counts he was acquitted of ten of those counts so the evidence in this case certainly was not overwhelming it was not all that with cooper that's not true that's not what happened here mr cooper could not testify no reference to the counts that this man that does no reference to the counts that morris was charged with in the direct cross or redirect examination of cooper he they just simply ask him what happened yes it's not it's not tethered to any particular charge in an indictment at all just went he just talks about everything that happened when he was with morals your honor my time here is do so so i'm trying to figure out how you can say that he was asked about seventeen felony accounts and not three when he's not asked about any felony count except to say please tell me what happened what happened next what happened next because i looked at the testimony and then i looked at the charging document as to what specific felony offense was was charged and i looked at mr cooper's preliminary exam transcript testimony and i found testimony in there that went to seventeen of the twenty counts that he's bound over on the fact that the prosecutor doesn't identify doesn't flag the transcript so which of the three wasn't he asked about that he was not a he was not a asked about any of the comments that related to what happened in the whitfield's apartment because of course he would have know that the home version three was there that's right he can't be asked to testify about something he has no knowledge about so how can that possibly be prejudicial taking you back to what happened about the availability yes or you seem to be or we seem to be faulting the prosecutor and my question is as i read what happened the judge is kind of talking both in both sides of his mile he's taking two parts if the prosecutor had said your honor he was picked up by the southgate police we try to get him here he can't get here today it will have to be tomorrow and you honor have said that you intend to proceed so i guess we'll have to use the transcript would that have solved the problem that is the prosecutor in my hypothesis says exactly what the judge says and those are the efforts that were made is the problem that the judge never let the prosecutor talk no i don't think so because i don't think finding out where a missing witnesses is is doing anything to get the witness there but once the judge says i intend to proceed what's the prosecutor supposed to say your honor if you do that the six circuits going to overturn you seven years down the road and we quit and what's he supposed to do anecdotally i can say this judge had been on the bench for about four months at the time of this trial and i truly do not think the prosecutor good your honor let me tell you about the supreme court in crawford i'm not sure that judge understood what he needed to do in this circumstance in order to create an appropriate record and forgotten on the record once the judge said we're going to go ahead with the exam did the defen probably ten page ten sixty one zero six zero for the record the defense attorney said just for the record your honor i would object obviously i think from the jurors standpoint obviously part of their job is to check the appearance of the person when they are testifying to assess their credibility body language their demeanor on the stand we don't have that in this case so why would so he objected yes that's all i meant yes but good enough  i just want to make a couple of brief points we do seem to disagree about the about what mr cooper actually testified to in his very brief preliminary examination testimony your honor asked me about the instructions and whether or not the instructions bore out what counts applied to what facts and what i would like to i didn't ask you that i told you i read the instructions and they don't go to specific acts ok as as a clarifying point the assault with intent to murder which is only what happened in the vehicle the gunshots being fired if the felonious assault which she was convicted of had been to those facts had been that action then it would have been included or if the trial court would have instructed as to a lesser included offense felonious assault is a lesser included offense of assault with intent to murder and that is not this case that's why the there isn't anything called  assault with a dangerous weapon then it would have appeared in the instructions as a lesser included offense to assault with intent to murder so that that's the support for the point that the phoniest assault or excuse me with a deadly weapon actually occurred up in the fields apartment so that being said cooper's testimony only occurred as to and i don't want to belabor the numbers but he testified to thirteen different counts based on  says that the only thing he testified to work for which he was convicted acquitted that cannot possibly be true you agree with that yes so we've got a situation where that defense does not so then we go on and look at where the law with the law was clearly established and whether i suppose there was overwhelming evidence of guilt for the counts for which he was convicted right