morning and then answering questions you may have of course on one of the issues that we've got before the courts why stats on one of the witnesses  questions there was obvious isn't back and forth about whether or not he even had a privilege at the time the state in its brief didn't mention that someone can't argue for a constitutional felt threatened and then he was going to help in the times and then he tried to claim a th amendment privilege ok and you know that the judge acknowledged that you know while there is no limits on possible mention that a defendant cannot raise a constitutional plain for someone else which is true this is not what we're trying to raise the court's attention what we're trying to raise to the court's attention is that for being informed he couldn't assert this th minute privilege after the court said no mr spencer you must testify or spencer refused to answer any meaningful question he didn't answer at all he would just sit there and after over the defendant's continuing object in the state was a lot of course to read into the court and before the jury the testimony from mr spencer's own trial ok so basically all of this testimony is coming in from mr spencer's trial over to friends objections the jury is hearing it and mr spencer himself is not saying anything but also reads the fact that when there was no meaningful cross while it was going on i believe if i remember correctly he said oh i just said all that because i was trying to help myself and that was on cross examination i'm trying or is on cross examination or it was during it was trying to do was shift the blame to something that's correct but i would also say and that's important i was going to get that that was important for the jury to hear but i would also say the jury heard that one se i would say minutes upon minutes of the actual testimony that he did give from his trial so we're hearing one sentence saying i just made all that up to help myself verses all of this  testimony that's coming in the jury's hearing over and over and over again i think it's may have been a bit prejudicial in that sense i would also say  the inferences from a witness is refusal to answer those causes those i don't remember those are and he's refused to cooperate they have an impact on the jury and i should also be considered like i said yes he did say i ma this up to help myself but like i said the jury heard a lot of his testimony over and over and over again they heard him not saying anything they were not refuting anything except from once and i think that that did stick injuries had this case i knowledge that we don't have so much of that record at this point is it is being resigned direct appeal as opposed to say a post conviction where you have been able to develop that record bring in his records and possibly have them exam allow the jury consider for your statement the witness who is refusing to testify as impeachment then i have a hard time finding that the trial judge abused his or her discretion when our me affect someone's fair trial to point so i almost kind of goes to almost a constitutional issue where at one point yes is impeachment and it's proper in each minute but at what point does it become prejudicial to define it to have all this stuff constantly read into the record and not being able to bring up your side of it because while it may have to read testimony is impeachment how do you impeach that impeachment if you don't have the person's determination that eighteen is the cutoff age was arbitrary zero and they've declined in here as to extended to the group of people who were was a full out constitutional challenge as to whether someone has to be eighteen or maybe the owner or as in this he's for trying to do it as applied challenge which is slightly different we're saying that the constitutional violation happened as applied to him right invention all twenty one year old as a whole which is not slightly different than what happened here is these the also the difference would be that we're not saying that all twenty one year olds obviously can't be held criminally negligent or what have you or have to be considered but we're saying that there is science out there science that has been accepted at numerous levels of the courses in the united states that say should be considered at sentencing and almost turned and be considered a juvenile in terms of sentencing only so that the miller factors looking at all this in ten characteristics should be considered i'm still like i said it's not necessarily that we're saying all twenty one year olds should be considered juveniles in the recent instant had we were staying as applied to this client this defendant mr williams himself he should be considered closer to a juvenile than an adult and we do acknowledge that we don't necessarily have that record created to show that ye have seven issues i think i wrote a fifty page brief in this one so there's a lot more that we can really cover in in fifteen minutes with regard to the brain science issue i think that you know harris is basically spoken on this issue and society i don't think that the brain science we're discussing juveniles is really applicable to a twenty one year old adult in this case and i realized counsel side of the case cordell williams that was not initially in the briefings so if your honour's would like i'd like to supplement that if necessary if you determine that you would like further briefing on that if you cannot read that is i'm not familiar with what that says in addition to the nd house key cases recently come out in the no counsel made a brief reference count with house i think that case is probably due to be reversed once it gets appeal because it seems pretty clear that despite the fact that the defendant was a nineteen year old in that case that despite the supervisory were from people b harris the st district house essentially came up with the same conclusion again even though harris you know in very certain terms outlined eighteen is the age that we cut these off not one thousand in two minds and not certainly not twenty one years as defendants argued in this case i think you know in the interest   stairs he says as i think the court is his is bound to fall harris on this issue with regard to this isn't a new you read here this then is not allowing for any additional argument for th areas an adult is an eighteen year old anything above that we're not considering these youth in attendance circumstances which is what the whole point of those are of those juvenile cases were they were focused on sixteen year olds being given sentences that amounted to defacto life sentences even though they weren't necessarily sentenced to life imprisonment it's just now we have here is what under under official or under as applied challenge this defendant was twenty one years old when he committed this crime it's just it's just not means eighteen in a day or eighteen in six months i don't know that's that's a different fact set than we have here but we have here is an event whose three years beyond the age with regard to the confrontation issues with marcus answers justice right pointed out there is and the foundations challenge that's correct that's what the original order was i believe that was also in the supplemental brief and so our position was that's not that's not required in the context of this case because we're talking about prior testimony that was in a court case and the rule in this particular context is this the state in order to authenticate that information doesn't require any court identification of the defendant every choir is a time and place identification when that testimony heard i evidence that's ok because it's long as it's not being offered is the only evidence where the prosecutor is not relying solely on the defendant silence before they offer that evidence and you know they're given another friend of the witness they're giving the witness the opportunity to testify and if the witness refuses they then later went back and they didn't read it under it was essentially impeachment procedure i do believe that the way the procedure worked out in court is that the state's attorney asked the basically a examination was destroying the credibility of spencer and part of the other reason why it is formalised it was duplicative testimony because tissue or feel that already put the gun in the van and stand aside from spencer's testimony i think the jury probably found that spencer did not shoot but he was armed his if they did find him guilty of attempted armed robbery which would require him to possess the weapon but they couldn't determine from the testimony who shot the weapon and i think marco's tensors testimony spoke to that issue and helped defense counsel as far as you know reducing his credibility when they impeached him like that i think it's also with us that don't know there was no other gun found the gun that was found did match the description that issue or field that had stated that was when she was in the vehicle with shelton and spencer and the defendant a black and brown handgun was passed to the defendant and the gun that was found didn't match that description was a black and brown handgun and what about the shell casings and things that were found was there any evidence that there was ever a nd i don't recall that the shell casings and i believe the cave casings that were found matched the gun that was fired i don't know that there was ever any evidence that another gun was fired there was evidence frankie ratliff testified he was one of the individuals who was in the reason he believed there was more than one gun so it's possible that that defendant and spencer were both arm but it wasn't something he was certain nobody testified to you and carol crosswhite the other individuals in the house didn't testified that she saw more than one individual with a gun and so there's some evidence there may have been a nd gun but there's not i don't believe there's evidence the nd gun trying to remember how it was phrased when i was reviewing to say the facts of my brief make it put it then i'm not sure if you i know he was the only one that testified it was more than one guy if he testified that there was more than one gun fired that's what he testified to but if not it's the only evidence that i think it plays in the identification of that these issues because you're not required to identify the defendant under the context of the of the prior trial testimony coming in even when they use that prior testimony the  rule that i cited in the case law is that the only thing that has to be authenticated the proper foundation is that you identify the time in the place which the prosecutor in this case did she said this was very worried a few one thousand a trial and that's when this testimony couple things from my reading of here is from my reading of harris i do remember it saying that the record was not sufficient she would consider any of the young adult brain science issues in the hearing case so from what i understand that means that it's not something that could have been decided on mr harris his direct appeal of the record was not sufficient for them to make that decision and i believe that's why there are still pieces moving through the pipeline