good morning i may please the court my name is son of henderson and i represent the appellant marcus for his i'd like to reserve one minute for a bottle and given the limited time here i'm going to focus on the first claim of the of course any questions judge court has about the other two claims and more than happy to answer the first claim presents the issue of whether consistent with the constitution a trial court in a criminal case may designate the investigating detective as an expert witness and then allow him in that expert capacity to opine that the defendant is guilty the state court's decision in this unique case was both an unreasonable application of clearly established federal law under eighteen u s c twenty two fifty forty one starting with the one mr bor has had a clearly established federal constitutional right to have his guilt determined by the commonsense judgment of an impartial jury is right is clearly expressed in a number of supreme court decisions like williams v florida  which the court stated the essential feature of a jury obviously lies in the interpretation between the accused and his accuser of the commonsense judgment of a group of laymen here mr bore his was deprived of the benefit of the commonsense investigating detective there they were having a jury trial where your client was accused of robbing the victim and and all the detective said on reach a direct let's just assume he never should have been permitted to say that but all he said was well my conclusion was the victim was riding your client did it everybody knew that was his conclusion otherwise they would have been there two points on that you're on one and i'm not so sure everyone did know that was his his conclusion that the we really have no idea what the jury assumed about the charging process and process of bringing someone to trial the jury may be like us and consumers of popular culture and they may hear things about the victim pressing charges and they may have thought the victim is the victim driven situation where the victim says something happened to me in the investigating detective is out there figuring it out and coming to report to them there's no reason i personally think it denigrates the jury to assume that they think that the that the detective is a partisan for guilt putting all that aside whatever they thought of of what the detective had to say the state court ignores what the trial court did which was to call this guy and expert before he does it it's not simply that the it's not simply that the detective got up and said you know mr krueger was robbing mr boyd his was the robber the court says before this hey this guy's an expert he's investigating squarely addressed by the supreme court a situation like this i know that jury has to you know gets to decide your case but that it's a violation of due process when a detective like this  we should be on all fours it has i mean as i understand the case law there it you don't need a precise factual simple you don't need the precise facts in order to find he does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied so we have a close factual pattern where an expert went a little too far in their opinions and that was held to be a violation of due process no your honor we we have these clear statements by the court that the you know that really the essential feature of a jury trial is that you've got the commonsense judgment of the jury you don't you don't get the jury having been in a certain sense almost almost instructed to to find guilt i mean here you have the inherent authority of the officer to begin with you have this supported by the authority of the courts and he's someone you should really listen to and you have the jury's i think certain knowledge that the officer knew more about the case than the few details that were brought out in testimony and that's really something that was emphasized by the prosecution's own questioning this else about all the evidence you collect in your investigation this is a really good argument for the california state court that there was reversible error for violations of the rules of evidence but how does it come to due process it again it comes t because it's so interferes with with this clearly established right to to have your guilt and innocence determined by a jury did you argue due process below in the district court well i didn't do any places or for some subset of the jury right case it wasn't argued as due process it's argued i mean they they it's argued is due process in the sense that the jury right is a due process right according to you can be louisiana i believe it  one of the basis upon which the district court rejected the pay vs petition was that it wasn't raised in the state court in the objection to the testimony as a constitutional violation that's not actually was the trial court judge in the state court you have in front of him the objection that it was based on a violation of due process to allow this testimony he did not but it was not required by that that the what what the state is claiming that there is a you know well established very specific rule that you need a constitutional injection or to bring constitutional argument later but the cases  bring up a constitutional argument that's a legal consequence of admitting the evidence that you said shouldn't be admitted that's that is permissible you preserve it that's people be party i don't think i've ever heard a trial lawyer object on the ground that the answer would violate my client's right to due process i mean that i think you have to be right on that point but at the merits do seem easier than the perceivable are you perhaps and i guess maybe i can just ask you a slightly different question just on the harmless error point because if i remember the california court of appeal said you know if there was error and admitting this he could not possibly have had the dramatic effect on the jury's verdict that you're you would be required to convince us it did and i seem right to me as well what you have to say i mean two things that they really they really pointed out a couple of things one is what we just discussed about detective pick who are being the investigating officer and everybody just assuming that's his opinion anyway and i've already told you i don't think that's a fair assumption and it ignores what the the  the trial court itself did calling this guy an expert and remember that's who is sponsoring fine but they don't want to answer right in a whole trial bunch of other evidence i guess that's seems to me what you need to speak to this was such a thin case that the jury hearing that one california courts determination that it was harmless is contrary to a complete one reason reasonable application of the facts implication from the prosecutor's question where the detectives answers that the detectives testimony was based on evidence that had not been presented to the jury that that's simply not accurate based on what actually occurred in in the trial the prosecutor's questions  few specific details he managed to share with him and then the question is tell us about your impression of all the evidence you collect in your investigation not tell us about the evidence that was admitted at trial i mean it's not just that they didn't limit it he specifically asked for more and so so both though those were the two factual those were the two factual basis of the california supreme court's decision and they were both unreasonable thank you attorney general for responding i probably also addressing issue one unless the court has additional questions and i do have a quick question for on the other issue the first one on the limiting of the cross examination are it appears that the trial court just cut the defense counsel off when after the defense counsel's whole strategy and been pretty made pretty a parent was to focus on mr korea with the victim here and his credibility or lack there of i guess the problem then the trial court can cut off i guess questioning but i'm a little troubled that the trial court here cut cut off questioning before he even got to the charge that he was found guilty he is focusing on the kidnapping leading it up right when he's focusing on the robbery before even that the judge cut him off so why isn't that similar to then are still well the as your honor noted the questioning that the trial court did already allow clearly  established that korea was a preacher carrillo admitted on multiple occasions that he lied about the arms kidnapping he needed in he admitted that he had received use immunity the prosecutor argued that as well so that was not at issue now the issue about whether or not the trial court should have allowed further cross examination on the issue of the armed robbery only cock count he was convicted of trip but the process that the crop the defense counsel's entire case rested on as he said the multitude of lies that kerviel made so the trial court had already shown had already allowed enough cross examination to show the jury that career zero engaged in multiple multiple lies so the substance of the potential impeachment that they could have elicited from korea about what happened in the motel as to the armed robbery i mean arguably is not as that's not the crux of the defense case their issue was not to say hey he also look at these teeny tiny inconsistency is as to what happened in the hotel room and the lies he made us the robbery their case was he is not a credible witness he lies about everything so even if he had provided completely consistent testimony with his preliminary hearing on the armed robbery it doesn't matter their whole case was he's a liar turning to  violation of his right to due process but he can certainly frame the argument that way and have a federal court adjudicated i don't i don't i really didn't follow your argument on this point at all so let me hear why you think that this is just not even properly before the court because this goes to the procedural bar argument as well that he didn't object your honor if you let this witness answer this question is going to violate my client's right to due process you think that's what should about not wrong i'm not contending that defense counsel should be saying that and i also have never seen that in any record that i have supreme court found that the because three fifty to encompass the prejudice analysis that necessarily flowed into or implicated if you process violation in this case there was no three fifty two objection objection w the court help federal hate this relief review was barred where a petition raise only an evidentiary objection and not the confrontation clause objection your money to the california court of appeal address on the merits of a federal due process claim  my reading is no they said no due process violation and cited california case law ok but i mean i guess i would find your argument more compelling if the california court had said as you are arguing we're not even going to address any due process implications of what happened at trial because the objection was only on relevance or speculation grounds well i guess i thought the court had gone on to say and we are going to sort of take the due process claim on the merits and just reject being not of any substance i would contend that the california court of appeals lack of mentioning the federal due process cuts the other way so the fact that they didn't address the due process the federal due process violation guess let's look at the sum total effect of what happened here the court could have cross examination of a key witness the victim after more has had already stipulated to what he's said was the admission of other inculpatory evidence he had his whole strategy a strategy here set up to focus on mr career and also admitted the court here also admitted the detective statement that in his opinion bore has robbed korea cision usually left for the jury why doesn't the cumulative effect of these errors amount there was i mean there was no discussion in front of the jury a so that it was one tiny grounds that the evidence here was thin the evidence was even putting aside korea's testimony there was corroboration that supported the one could make other reasonable inferences from that but that in addition to the gun and in addition to the few hours after the robbery took place that career a t m card was used at a location that he did not normally frequent he was used to withdraw two hundred dollars from that account i think all corroborate the statements here made by korea the the harmlessnes determination it was not unreasonable here but you would concede that the jury couldn't possibly convict in this case without believing in korea right i mean if you don't believe korea is just my there's no conviction here you have to cry as this just like you know  but i just i think i want to answer in a minute that i have just a about the cross examination claims and since that came up and we didn't talk about it earlier i think as as judgment you know was pointing out there  was not permitted to cross examine about the specific event for which he was convicted which was the robbery and they're there one tiny inconsistency as they were rather large and consistencies and it's not simply that mr  was a liar it's that he was hostile lying about the key points as well and that his motivation for line that he didn't want to tell his wife they'd follow the woman into a hotel room doesn't really apply to why he would be lying about what happened in the hotel room y is now submitted