a homeless person and a transit officer now the act of according is not a crime and in fact it serves an important public function a police accountability y these were generally familiar with the public media programs on this matter and i think as a general proposition it's a good thing when recording of events and issue is that the trial was fundamentally unfair when judge gonzales erroneously expanded the discovery sanction to be a sanction about mr hernandez present credibility and all untruthfulness and when i didn't understand because there was a little glitch in the in the audio for just a moment you're saying that you didn't and you still don't object to the magistrate's ruling but you think that really did not authorize this statement that was made to the jury here that's correct the ruling st by judge yarbrough and was that the defendant would be asked about his failure to answer in toronto to ariz and there would be a lot of cross examination on the failure to answer that's very different than what he not at trial which i did object to and there would have been a just an objection had the same sion said that there would be  miss martinez asked the client would i can i refresh your recollection about whether sanctions were issued against you for failing to give me truthful information that's very different than judge yarbrough as order which  he did not do so and therefore why when he was questioned about his failure to do so at trial why wasn't he simply being questioned about his failure to provide truthful answers to the ira the judge commenting on his credibility somehow i guess i'm not seeing her distinction so i think the distinction is it is very different to say for example aren't you you know everybody is  at rap music he's also cases where there was comments on credibility but not credibility findings by the court and those were analyzed even though the comments were allowed there was far more re conduct for example mr blodgett and the oklahoma better rated case he never answered any discovery he never submitted any witness list and could have been present evidence and yet he was  he was the judge needed to explain why he wasn't testifying and so there was a comment about the nature of his testimony and that was very different in this case and that was a  fact that he was the fact that mr hernandez was found to be untrue by judge yarbrough was a part of the sanction which was going to be allowed to be presented to the jury and that was not  part of the sanction the saying anything although the judge did feel that mr hernandez was not truthful he did not put it in that in the same fashion that would be told to the jury and that's very different that when we're told something will be told to the jury that changes the entire complection of the case and it is a credibility finding and that's not what the sanction was supposed to be and it was highly prejudicial to mr hernandez which i did object at trial and again to closing because of the way that it was the way that it was offered and that was preserved  court for refusing that this morning and yes there was extensive argument on it your honor and i believe that letter my question is are you representing to the court because we will look objections and offers of proof about the book the role of ben's the fact that it was not a character witness and the fact that the witnesses there was notice to the defense and that that the if you can so if you want to reserve your time yes i did i did want to reserve three minutes i would like to say i would like to just indicate where we have preserved the issue on the directed verdict and the most important function served by a jury is bringing its accumulated experience to bear upon witnesses testifying before it in order to distinguish truth from falsity and this court has specifically stated we do not nd guess the jury's credibility determinations nor do we reassess the jury's conclusions about the weight of the evidence presented so as this court properly noted be entered in at issue it occurred aug th of two thousand and twelve and it was tried before a jury in and nineteen and it resulted in a defense burdick on behalf of defendant fitzgerald now the plaintiff's main argument is that for reversal under the sufficiency of the evidence is that the jury determined that the plaintiff was not seized and thus the plaintiff is entitled to a new trial in fact if the court reviews the jury a very special verdict the jury did not determine that the plaintiff was not seized the jury determined that the plaintiff's was not seized by my client mr fitzgerald and so that's that's a big difference between what's being argued in the brief and the facts it is by the jury but does that matter if an officer and the consequences to chill the either st amendment rights or other rights that these rd party do gooders some would call him  in in the process of videoing what they consider to be police misconduct well what what is the should or should the courts just  readily accede to the officers version or do we have broader obligation your honor in this case the plaintiffs approached the bus stop with both his cell phone on and a concealed audio recorder in his pocket and  nothing illegal about that your honor except it is pretty much established that he was attempting to set up these officers he previously sued the city of albuquerque in the past for similar claims for similar injuries in the same locations and this was not fitting anything up but just trying to record what is going to well the evidence is your honor that despite not making any cell phone calls from the scene the plaintiff's friend managed to show up to the to the location i guess magically the plaintiff admitted at trial that perhaps the cat called him prior to his encounter with my client and he showed up at the scene immediately following he can be seen in the police officer's lapel video and he face erica she sleeps around watching that the action then takes names and after  plaintiffs can be heard on his audio recording meeting up with other individuals watching the the video that he captured congratulating him on the great video he captured and then talking about how they've they found lawyers who want to take but i get you to respond a little bit more on this question on the it's on the rule fifty motion if we disagree with you that the jury did not have facts before them that would support the jury's decision that there was no seizure by the defendant here what does that mean for your argument that means because then the jury should have if if if that was incorrect the jury should have found there was a seizure they should have been able to go on and make further consideration regarding if the court looked at by him three of the appendix at page seven hundred and sixty nine and that a jury question and determined that mr fitzgerald future of plaintiffs was not unreasonable and the evidence a duty to try but they just found there was no seizure and i didn't say even if there was a seizure it doesn't say that your honor but but what we know f sure what we know from this court's precedent is that in the end if there are special verdict answers which are inconsistent that this court then construe them in the light surrounding in light of the surrounding circumstances and in connection with the pleadings instructions and submitted issues and so the defense admits that you know the evidence it is a trial from multiple witnesses including my client was that the plaintiff's stood and tried to attack him and that's what caused mr podge relata run across the street pull out of mace and take put handcuffs on the plaintive that's also corroborated by a bus driver who had driven up to the scene and saw the whole encounter and the bus was full of riders and they were all present in observe the reaction so nobody came or when you make this argument and your response brief on that issue no i i just saw some general discussion a rule fifty and i didn't see any argument like what you're making right now well  attention inconsistent verdict and how we should read it if we did i did not make that argument your honor but that is contained in the in the the special verdict and consistent with this court's precedent  i wanted to address briefly that the plaintiffs arguments about the court sanctions and the court is correct that the plaintiffs did not object to the magistrates recommendations and those recommendations stated the following the nature of the information plaintiff claims he simply forgot and the lack of diligent plaintiff has displayed throughout the course of this litigation make it difficult to accept the plaintiff's representation that his memory simply failed  that that was the finding by the magistrate court and then if this court were to look at the order entered by the district court concerning the plaintiff's motion in limine e can concerning a sanction the district court stated answer multiple enter aga tori's more than once even when plaintiff was ordered by this court to provide true and complete answers and that is that is all that that occurred at the trial it was conducted with all of the question was a sanction only talks about that or to give the dancers and his word truthfully although it was proposed as a justification for this action was and was not i don't think in this dialogue you've said it ever injected but but it might have been injected in a different place and this is my question to you in the motions in limine addressing the sanctions i believe that hernandez conceded quote defendant this general may question plato we guarding whether overwhelmingly in favor of the defendant the plan to can self produced photographs that he to legislate taken of his injuries in this case i did not object to a single one of those photographs the plaintiffs claimed that the defendant my client and mr punter l he said two giant black men jumped on him with all their weight and he claimed that my client strangled him the evidence that he had were some pictures of his neck i asked him how i could tell the difference between that the damages from the st case he brought against the city of albuquerque or in this case he said oh well your client entered the back of my neck this photograph is a picture of the back of my neck and then as we looked closer at his own evidence he was able to see the photograph was actually of the front of his neck and so he was unable to establish any damages in this case or any photographs that he took himself consistent with the injuries he described well i'm not so quick i mean isn't the very assuming his version of the facts are correct that he was concerned about police shows the plane of standing up you can see image from a certain height and then image from another height and so hands are only laid on him when he threatened to physically assault my client be evidence was that he raised his his arm and tried to threw out any also had to stain for the law enforcement who showed up after the fact he never disclose any of his injuries he never disclosed this altercation he never claimed that he was unable to video this whole series of events was never disclosed to anybody at the scene it was only discovered later to this litigation or and so that is that is another reason why the jury chose not to believe miss the plaintiff's version of events because he simply they simply weren't corroborated by the at the scene in fact the law enforcement officer who arrived at the scene testified that the plaintiff had no marks no bruises and he's a trained observer he didn't disclose that he'd been injured he can disclose that he'd been better he didn't disclose that he'd been assaulted  none of that information was disclosed and in fact in parting the plaintiff stood up and went up to mr padre well and demanded his name and id so that he could make a record of that for his future use in his litigation so the plaintiff's allegations were not believed at any time thank you very much thank you criminal acts that would have been not allowed into evidence and a rule for all three or four or four be and to look at only this out the same action with respect to that evidence and in it  and that's why i think it's important to show that distinction more than once even when he was ordered to provide the answers but the that the part about what was going to be allowed in front of the jury was a because it was a paramount importance to the plaintiffs to make sure that we knew what was allowed and what wasn't allowed and the judge said that they would be allowed again to talk about the failure to provide complete answers and then to it at trial and we were trying with the motions in the mini to work with the poor on what was going to be come before the jury and i really did not notice that there was going to be any judicial finding of untruth