sentencing this was a violation of supreme court rule for one essay all the state contains a it was either substantial compliance or he wasn't prejudiced by it for a couple of reasons i think missed the mark one of the states has really got fifty years and he was a then grants or in a case where it's really five in fifty percent and a judge doesn't realize it's eighty five he just goes and says it's fifty and then he sentences  right in the line and then the question is the opposite of yours is what he changed it if he had known the guy he fighters in your case there is no possibility of this the issue with respect  know he proceeded pro se i mean at that point i don't know you know i think it's their right to counsel is fundamental so i don't think without being properly informed of the with the no waiver of that right it still could be reviewed i mean there's well there's no can we no one has ever been able to conclusively tie that begun to mr morgan maybe because it was found and he didn't mention it to the grand jury exactly but i think by i mean can be hard to defend because there's no fingerprints there's a difference between saying something that isn't true and not giving the grand jury sculpt or information there is a line somewhere there's a right yes i don't think that this is an been a rebel and i was trying to argue the state didn't prove his case because there's no fingerprints i don't think i would get very far because i very rarely see fingerprints on handguns which just reach the next issue which is i don't believe the state prove the cases where witness testimony was held to be sufficient but i don't think this case is going to star as the state says i don't think that any witness testimony of no matter what that testimony is is all sufficient in this case to just briefly see the bad  both of them by saying it's the began or with play the murder mystery we put the gun out there right after the crime saw that now we can reduce so now he's reducing the post and you know for what he can be charged with so is it really against i think it is rather you know i get what you're saying i don't think either one of could be used against him so right thinking that means it means the requirements to be admissible in mr rights case and i think there was corroborated which is another factor the courts look to because he said it was a b b gun they found a b b gun in the path where he you know had ran and i think that's or was very necessary to mr wright's defense on this on that so i think of all the requirements under chambers firearm and it says where appropriate put in the exception a b b gun is one of the exceptions in the case where there's an element that's contested and the definition is required to be given in the exception needed to be given in this case and i think here i think it might have been i think it didn't really without the jury norene that if even that is not included in that definition it didn't have that enough of a curate effect i don't think it without giving the proper definition i think the robbery instruction sure the air understanding from the record is that the trial judge asked him more than once if he wanted counsel and he said no and kind of a favorable way you know i don't know handgun was used in a handgun had never been a defendant when he suffers a due process violation where the prosecutor deliberately or intentionally mislead the grand jury uses face or perjured testimony or percents deceptive or inaccurate evidence that matter statement was accurate detectably testified truthfully in the grand jury that quote if it was armed with a handgun during the armed robbery in this handgun he not been recovered this state was supported by the evidence at trial at trial three eyewitnesses testify clearly incredibly they could  here requiring the people's will is there a difference between not falling tearing a piece of information and answering a question about of a piece of information in a misleading fashion well misleading the grand require the people then to present evidence of every eyewitness who saw the firearm this would create a plan or a trial on this is exactly the result the supreme court was trying to prevent reply brief i think it was defense made the argument that before the trial began morgan's attorney informed the court the defendant and the state's attorney in open court that detective it's clear that at the time of the sidebar during trial no one was aware that could have and it was you know exercises to familiar and i'm sorry did as i understood what the defense argued in their reply brief he said before the trial began mr morgan will take the fifth is called to testify correct ok so that happened before the sidebar that you're talking about correct at the time of the sidebar it's already been established that mr morgan is not going to testify and the judge even said at some point during around the time that we're talking about in the trial i'm not going to let you call mr morgan just so the jury can see him take the fifth the what more does the defense have to do to establish an availability this is this  gun is nothing more than an opportunity to reduce your crime to robbery from angry you're absolutely correct in fact and once in the court stated that  or someone who is alleged to be home with and he is just out and in the heat for mom and forces him to do this which suggests to us that perhaps this is an individual who is well versed in the law or who has any understanding about you read that there's a pretty good indication of reliability on this that he would assign a statement when this guy is arrested he runs the police can pretty much trace his route they catch him it bring him back to the station at that point when they're back at the station questioning him there's no talk of b b gun no one's found a b b gun in fact the only evidence that you have is what the people at the restaurant have said which is its automatic weapon it's a nine millimeter but this codefendant mr morgan says i used t and lo and behold a week later once the snow was melted they find that i'm not saying it's that he began but it even begun that looks a lot like an automatic weapon right in the path you know he tossed the weapon and there you find in the path i acknowledge that we but nobody has been able to conclusively tie that got to mr morgan but that's not the standard when we consider reliability you don't have to show absolute certainty right i mean doesn't that they were convinced substantially more solid than not that that was a real weapon and that therefore i mean they have their their door and their round and even the the state recall detective leave or to wreak or to call detective lynch and ask him a question that had already been told specifically it's not coming in i don't think what is was necessary and especially in fact before the trial mr morgan's attorney said he's not going to testify he's going to plead the fifth the trial court to speak literally told mr wright he's going to exercise his right to meet remain silent i think it was clearly demonstrated on availability and then he tried to call many exercises right  so your position would be during the sidebar that's what you're referring to during the sidebar when the prosecutor said well if he wants to call mr morgan he can try and the judge said yeah that's right i'm paraphrasing the words but that's what you're saying at that point that the defendant could have rightly taken that as a as a ruling that he cannot introduce this evidence is that is that your point is that why he would say he didn't in his case and she tried him with this and well he tried he did called mr morgan and mr morgan put the fifth ok but but true peaches our witness and so it was like the jury heard that this other person had confessed the crime and they said that's a due process violation of a right to present the full defense i just before that to get to the state repeatedly said with the rest of the destruction everyone just knows that sports including the definition of a firearm i think is be lied by that there isn't criminal pattern jury instruction specifically addresses and says here's where far is here's where a firearm is and when appropriate you must tell the jury what a firearm isn't what it is and i think in this case it clearly was appropriate and the fact that the jury i'm playing i'm sorry but i'm playing error you the case flies made a distinction between the failure to instruct on an element instructed on the definition of that element it in some instances if it's an relates to a contested element of the offense it is an error to not instruct on the definition and i think this case did it here on the question of whether it was contested if he even raised this in his closing argument if you ever say it been and so that was clearly part of his defense and you know perhaps he wanted to focus on something in closing and you know i think he's maybe gone for all or nothing and it backfired on him but i do think in this situation because this was a contested element where the