i'm on the cross appeal issues i'm going to rest on the brief unless the court has any questions or unless there's something i need to address i'm going to focus on the the i think the core argument of this case is that the erroneous admission of the september eighth statements did not substantially and injuriously influence the jury's verdict in this case and the chief reason for that is that the properly admitted evidence was not only sufficient which isn't the standard of course that i'm not entirely sure but i think that in our first pleading in the district court it i think that it was an oversight i do because if you read our answer we don't actually address the september eighth statements and so we don't say well yes he did invoke and then they re initiated and then he spoke again and they admitted it but it wasn't there or we didn't make that argument we simply did it all the way through the state court all the way through the michigan courts out and you know what edwards yes i know i mean why to raise something that's obvious that you know over well the attorney general didn't handle the case in the state courts so that's a separate question of ok mccollum county to county ok and they are all right all right that that's you know sometimes the attorney generals do something the appeals in smaller counties and like it right but you're right become county so the become county prosecutor didn't raise it all right i think i am ok i think i understand and then you guys got in the case and you recognize the edwards air well we eventually did recognize the a in our in our second pleading we filed we recognize the edwards there and i think the first pleading we filed it was simply an oversight in terms of not i think maybe we didn't understand in the same way that the machine court of appeals i mean the way they framed it was you know he was mirandized he spoke he waived miranda so it was fine without kind of they didn't sort of recognize edwards and then erroneous they say but this isn't an error they just kind of like they didn't go here at edwards even existed i think or or even understand that that was the claim and i'm not trying to was it wasn't the edwards claim brought to the attention of the michigan court of appeals in that motion to remain where they wanted evidentiary hearing has to attention so i don't know why they didn't why that the court's opinion read the way it did ok at this juncture than i mean you can see the error you can see the error because edwards is clearly established law as set these court yes and since that is clear is there any up to deference in this case since there is a clear violation of i don't think that we can argue an because because we're conceding the error itself so we review it and over and over but it's the brecht harmlessness standard so it's a different standard and it's in it is a more friendly standard to us which is we don't bear the burden of proving that it was harmless beyond a reasonable doubt instead of the standard is whether there was are not entitled to double deference as you know you can see that yes no that's right and it will end even if the state court had done a harmlessness analysis they would have done it under chapman so we'd be only entitled to the deference to the chaplain analysis not to the so it all it all washes out and ultimately the question is for this court to say did it make a difference to the verdict and so this court has to imagine that there's a juror who hears he's caught in this car in this crack neighborhood in detroit six hours after it stolen he lies to the police about where he got the car he says i don't know where i got the car that's false he knows where he got the car wherever he got it he knows he the car was stolen from an area around where he steals cars around where he lives and he steals cars that was stolen in the method he uses to steal cars but it is never done carjacking before the other cars they were nobody in it right they were in occupied cars and it was like a crime of opportunity this was a this was different that you have a person in a car it was different in that case it's i think a jury could decide that he might not have been aware depending on the angle that he approached that the car stopped somebody got out and went into the store so from where he's standing he might not be aware that there's somebody still in the car he sees the opportunity he might have been surprised to say but if you're saying this is a pattern of conduct i mean the fact that there is an occupant in the car is different from the pattern that is true and the jury's he had on the other want right and and how do you how do you deal with that mis identification did the first of all the petitioner how tall is he i don't know actually does he wear glasses he doesn't wear glasses to my knowledge what color hair is brown hair ok and i didn't the victim say he was a tall white male who was wearing glasses but he wasn't white male and and blond hair i think it was i think the evidence was blonde or brown so might have been blonde ok so i any juror who did harbor reasonable doubt based on the properly admitted evidence would continue to harbor reasonable doubt after the september eighth statements because again they'd be hung up on the identification so the jury or the jurors are allowed to consider that and the jurors could be aware of you know i mean in every case before this one defendants tell me i witness identification isn't reliable this all happened very fast this person is giving statements you know in extreme stress they're literally dying on the pavement we cannot believe what she's saying course in this case her identification you know we're told by the defense is very reliable and proves his innocence so it's a little bit of role reversal but the point is that this was all in front of the jury and so the jury was allowed to make  determination this very was jury was the argument by the prosecutor maco county prosecutor was because he refused to talk on september eighth he must be guilty that his silence is deafeni and an innocent person would talk i mean i can't think of a clear fifth amendment violation of one's right against self incrimination that occurred here and it was a powerful stuff i need to i need to respectfully correct you on two points as to that first of all the prosecutors argument was both as to this timber sixth and september statements second of all it wasn't as to his silence he chose to speak but he gave false statements you can't talk to him with under edwards look it's not that you can't if he says anything it doesn't mean that you can now talk about his silence or the infer guilt from silence you can edwards there was a it was a guy was arrested in possession of the murder victim's car and he testified he tells the investigating arresting officer the car was stolen from a specific area then he takes the stand at trial and says oh it was tight it was stolen to it miles away and what the prosecutor there do is point out the contradiction you know impeached which is perfectly ok with that doesn't mean that you can draw meaning from the silence and that's what happened here in that there's a huge hit i mean there's judge griffin just said there's testimony at closing argument this his silence is deafening it was like a thunderbolt from the sky in other words he's saying he did it and it was all drawn from a silence was it not i don't i don't agree i don't agree with the prosecutor or you that it was his silence i think that is a rhetorical statement i think that he it was his speech if on september eighth he said you know i'm going to talk but then he didn't say anything or he said i'm not willing to talk then any use of well he had the chance to say something and he didn't he had the chance to say something and he did he did say that he didn't know where he got the cars he did say that he was at a seven eleven in sterling heights he did say these things and it was the statements not the silence even though the prosecutor used the word silence but it was the that he made that were used against him it doesn't matter for the september eighth statements it's it's a fifth amendment violation so we're really counting angels on the head of a pin allow no i am reading from the transcript here this is the examination by the prosecutor of detective hogan and he's saying things like so what did it tell you as a detective that he didn't give you any information about his whereabouts at the time of the carjacking he did not want me to know where he was now started explaining to you how if he's not a thief what would you expect them to tell you would you expect him to tell you yes well i mean all that is drawing inferences from silence from his from what he didn't say in light of what he did say so i think it's i broke i mean that's how you start out and we can interrupt you but i really want to hear your argument i think it's harmless under brecht because almost any juror would would harbor no reasonable doubt as to his guilt given the fact that he's caught in the car for a for be evidence of the previous car theft with the same ammo and the and the statements on september sixth lying and saying i don't know where i got the car any juror who is willing to harbor reasonable doubt at that point is not going to be significantly moved by what is mostly cumulative t september eighth statements simply because the stakes are higher i mean basically you've got to imagine a juror who says i think an innocent person could a lot of the police but not twice i don't think that that's correct i think that i think that any but juror who's willing to harbor reasonable doubt and say no he didn't carjacked this car he stole it in sterling heights or he stole it from the person who carjacked it already bought it from the person who carjacked it and he lied to the police i think they're willing to say yes and he lied to the police again on september eighth that doesn't mean he's guilty he still could have done these things that the september eighth statement just didn't give enough to move the needle on somebody who's already harboring reasonable doubt but most jurors wouldn't be harboring  emphasized the need to say that the difference between september sixth and eighth is that the victim is not close to death right and i mean he emphasizes to the jury that sure maybe a step or six that he wouldn't say  it what he's doing but any reasonable person when faced with the possibility of a murder charge and this is a temporary eighth would come forth at that point because of the victim's teary health and say we're  so i mean that that's kind of a powerful argument that his silence on september eighth was an important day and i think that's why the prosecutor got the size isn't it i mean you don't think that the move the needle at all i don't think  i think if it moved the needle it was a needle that was already in the point and you and i'll point out the defense counsel also emphasized how the september eighth statements weren't that meaningful is the time because the police are allowed to lie and the defense can defend dan rather didn't necessarily know that she was on death's door or that she was harmed at all didn't help that your did the prosecution i mean he was on the prosecution side with respect to the september eighth in his decision am i correct about that that cone yeah no no judge cohen found that there was  about september eighth statement least eight months were a key piece of evidence to the park for the prosecution and without it the case against petitioner would have been significant weaker the importance of the september eighth statement played for the prosecution's case is manifest from a fair weighting of the trial record so his evaluation of the importance is far different than your evaluate yes i agree with you and i disagree with joe i mean i think judge cohen simply erred and i think if you look at  sixteen and seventeen of his opinion judge cohen says without the september eighth statements the evidence against petitioners one that he was found in the vehicle hours after the robbery and two that he had on previous occasions stolen cars from the same area and drove them to the same location to detroit there's no mention of three which is his lying to the police on september sixth saying he didn't know where he got the car that's a key piece of evidence the judge can almost ignores in his opinion and i think that i think that's a key i mean with respect to judge gunn i'm not attacking him personally but i'm attacking his opinion because it really with respect to what a reasonable juror would think yes and i think a reasonable juror not so much right right oh and also found it effective assistance of counsel yes strickland's got the two prongs deficient performance and prejudice you can see deficient performance don't you know we've argued we've argued over there would be there might be reasons why and it's ok how i would there be how could it be reasonable performance to fail to raise the obvious edwards at issue because a reasonable attorney and again this is an objective standard so we don't need to worry about what this attorney did but a reasonable attorney could say i want however implausible i want the jury to hear an explanation of where he was and i don't want to call him to the stand and have him testify to it and be subject to cross examination and if i can get that in through his statement on september eighth saying i was at a seven eleven in sterling heights then as bad as it is i don't have a great case as bad as it is i want that in because it's better than nothing a reasonable attorney could make that call i'm not saying it's the right call but strickland tells us that there's more than one right way to try to case strickland tells us we don't look for best practices and we indulge every presumption of come to perform it's ultimately i don't think it matters because you have a prejudice promise just like we have a harmlessness analysis and either way if this court decides influence the jury's verdict i mean we lose on the edwards issue whether we win or lose on the strickland issue so it doesn't end up mattering thank you thank you counsel morning runners michael scott on behalf of mr hendricks i don't want to spend a lot of time on this but i just want to briefly mention the mccomb county prosecutor's office this case has been frustrating me for twenty years  all i do is criminal appeals and this is unique among them i felt the mccomb county prosecutor was being disingenuous and possibly just flat out misleading the court  throughout the proceedings are raising you know sixth amendment arguments when it's of the moment claim so in any event i know the a g is handling it now but it's been very frustrating to me  in any event in look again this case ok so we have a standard that's as substantial injuries a fact and then we have to look at well what what what what the jury have have thought the take out the evidence it's not a sufficiently standard ok maybe the evidence is still sufficient to convict him but did it have a substantial injuries  i would recommend that you just just look at the first few pages of the closing argument again i'm sure habs and it's a big part of this you know the prosecutor could tell you know you could tell that he could tell that he had a tiger by the tail here that ok we've got the guy in the car he's he's known for stealing cars but we don't have a witness we don't really know exactly what happened we have all these little holes in the case that could be problematic he knew it he said i don't have to prove beyond no doubt any really him in this home you know just just use your reasoning common sense and hack if somebody is found in the car six hours later where you were done and then he went on and he said there are three pieces of evidence one of those the pieces of evidence goes on in the car he's known to steal these cars and the statements as to the statements number one i want to emphasize the september sixty minutes some to september eighth statement are very different and even on the part where they overlap i don't know he says i don't wanna say i don't want to get into more trouble why because at that point he's been told detective hogan said this ok i knew this i learned her situation and i told him and it's after that point that he says i don't want to tell you how i got that car that's different you can imagine a lot of serial what he knew he was in the system as the prosecutor said he knew what he was facing for stealing a car he didn't want to be on the hook for something more and so it's that that statement becomes much more significant and if you are if you take that out if you and the jurors sitting there saying well ok we've got him in the car hours later we have officers that testify that he's crack addicts trade cars back and forth they say they  changed hands a lot the description and i believe your honor put up the description doesn't match i'm not here arguing that was that they should be out there that is a one hundred percent reliable description i honestly don't care how reliable it was but the point is she sure didn't describe them fairly important isn't what it is i mean i think i think the fact that the one statement they have no you know they have no video surveillance at this party store they have nobody who knows exactly what happened they have no identification the only identification of the perpetrator is a somebody who does not look like my client other than race he's a white identification actually starts with he's he has the car and he has his prints on the car right oh sure absolutely that's so you say the only i mean you have to car so yes he is tied to this stolen car but as to who actually took the car and michelin and then would be on the hook for the felony murder that we don't have an identification for other than this you know dying declaration what is the thing about their they were fingerprints found that we're not  they found fingerprints on the victim they found fingerprints of to her and then there was also another set of fingerprints but they were not of that five it was i was out of that was not to my memory of the trial that was not argued largely and i don't know why quite frankly i think if i were defense i would say victim addenda fight somebody else lost somebody else's fingerprints were found in the vehicle and will affect on the verdict and considering everything i don't know what's so we case i don't know how it doesn't have it if i'm sitting on a jury and i hear this was not an isolated statement the officer testified at length an innocent person would have told me that's my experience as an officer jurors looking at what what are jurors looking you to the point would be whether that's something that really influences  jury that they hear he didn't give an excuse right over and over they heard he didn't give an excuse but they also said he's the guy in the car his girlfriend's purse is in the car he lied to the police is that what we're deciding whether or whether that he didn't give an excuse he was silent has a substantial and injurious effect on the jurors so such that affects the jury's verdict  k that's the issue i think as i get it yeah you answering that yeah and the what happens is the officer and the prosecutor in closing argument they equate that with a confession they say he confessed essentially i mean i just reread the block of the closing argument they say why didn't he say because he did it this is the jurors and we can question when not in light of what they have well and that that's not the standard i relate that well sure and that's why i'm saying that they don't need it the question is if you're sitting on the jury and you hear and i say that i mean did that influence them terribly or did they need a confession in light of what the word shallow well and that's that's why i'm pushing back a little bit here you're using the word neon is using the word need need is not what we're looking at ok the question is did it a fact that and so if you're sitting there and you hear yeah you hear this damaging testimony he's found in the car six hours later and he's a serial county ok oh boy i want to that well the op i have had two officers tell me that in their experience people will tell them and then they not only that they investigated his is quote alibi and found that it was false there were and they couldn't find a record of a phone call to the to the grandmother they couldn't find this mysterious evidence that the d p d had the you know it's all garbage all of these things together absolutely i mean when i read this that would push somebody over the edge  and quite frankly it doesn't have to push them over the edge it just has to have an effect all of a sudden everything that you see all these explanations as a fee more than a reasonable probability to you and i think that you know when we were all doing appeals when i was looking at worry we would give the benefit of the doc to the fact finder we give the benefit of the doubt to the people there on the ground there on the ground when you read this what did the what did the prosecution really think about its case it thought it needed statement and it used  and sounds like prosecutors are may try to draw me from and not only that i mean i pointed this out in my briefs not only that the trial court exacerbated the problem with its instruction and said hey don't worry about the fact that he didn't testify but all these statements that are being lead and you can get all the adverse inferences from that that you want go far wrong and i was wrong i mean it's all wrong which gets to the issue at the end with the right and custody right and then they do that you know the jury just and laymen make inferences all the time and they make inferences one that  propensity if a criminal's done it before he's likely to do it again and therefore a criminal is probably guilty because he's a criminal well that's a that's a three four three four or four prohibits that and then the other inference a jury naturally makes is that people would talk that they wouldn't they would be silent that when asked if they committed the crime they would they would talk well both  impermissible inferences are at play here and yet and you know so whether that's a temporary state meant affects the verdict with these important is going on it's it's it's stuff well and as to the instructions yes they follow the instructions and yes they were instructed make make this adverse inference if you like and in addition you know again this was pointed out the the state initially said well this is all just argument of counsel but it's not just the instructions there was evidence they extensive evidence from the  juries naturally would do yes what we try to keep them from doing and the as to why defense counsel didn't object it makes no sense i mean i am not going to say much more about that it is it was that the thought about what about opposing counsel stary that he wanted them to know that he was in sterling heights south allowed and didn't want to get him on the stand i wouldn't i would not i would i understand not putting mr hendricks on the stand but letting in this statement about the d p d m being video evidence they know they know oh that does make him look totally nuts and then the art and then the detective goes through and says oh yeah i looked at that and it's not true and i looked at this and it's not true and i looked at this other why i don't know any reasonable defense attorney who faced with this statement would say you know that's a good idea that obviously it's very common strategy to not put the defendant on the stand but to have put into the record statements that all right a few items the prosecutor's view of the evidence and how important it is is not i don't think can be part of the consideration the prosecutor always uses all the evidence that they have that they think rightly or wrongly is properly admissible and that they can use and i can't stand up and say well i mean i did but only as a sort of a counterpoint you know the defense counsel said this wasn't that important the defense counsel said you know the police officers could lie they committed pilate you don't need to look at what he said on september eighth and so on and therefore this court needs to decide that this had no influence on the jury that's not the standard it's not what the prosecutor told the jury how important the evidence was it's not how defense counsel told the jury how important evidence was it's how this court actually believes how important the evidence was to the jury  e right exactly both advocates get to ask the jury how to consider the evidence but there are only arguments the jury has to actually consider the evidence and the prosecutor also have a leaves the september sixth statements against him and said  september right saying was more important the september sixth day that's correct yes that's what the prosecutor said but is that true and that's what this court or this court does not defer this court doesn't defer in any sense to that statement i mean that the prosecutors  weigh what inference of influence we think all this had all the jurors actually had on the jury not what the prosecutor thought i mean if this court wants to start deferring to the prosecutors on things i mean we might we might get some really good opinions out of that but i don't i don't think that's the correct standard and i don't think that's correct doubt as it is certain that one juror would have i mean that would have changed the outcome but it is more that's all we have to determine that this would have affected one one of the jurors well if you can say it would have affected her likely  like our gut feeling or something i think there's a somewhat of a passage of opinion that if we have serious doubts or so right here where we're left with a firm and definite conviction  doubt on the reliability of the verdict it is not a diff it is a difficult center to define and an argument is basically we know that it has to be more than a reasonable profit possibility as as judge cook said it we know that it has to be more than a small influence and it says that it it and and so that's the core of our argument is that the jury already knew the jury already had the september sixteenth months and the prosecutor had extensively argued  that that constituted you know he had the he had the chance to say where he was he lied instead and if the jury i mean we heard about the fingerprints we already talked about th if a juror and harbored reasonable doubt based on those things the september eighth statements wouldn't have made a difference they would have said i don't care what he said on september eighth when he heard all this stuff we know that the victim by done fine somebody else right so that that september statement isn't going to make a difference the fingerprints if the jury had if a juror had said well what about these the third set of fingerprints and how about the whole cumulative thing i mean you're saying ok the fingerprints itself is not enough the the kind of ambiguous description of the perpetrator is not enough of this and that but if you put them all together and then the fact that his silence is deafening by his silence he say i did it because if you substantial and injuries effect yes because that last statement you said by his silence he's saying he did it that's what prosecutors yeah but the prosecutor could have said that with respect to the september sixteenth and if the september eighth statements have been excluded the prosecutor could have said i mean a lot of that but he didn't do is refer just that's the question that is the question absolutely our argument is that it is you know my worthy opponent disagrees and i i hope you agree with me i hope that you agree that he got a fair trial that the jury was not  certainly didn't get a fair trial where he didn't get an error free trial but the question is the question is whether what the effect the error had and and and we agree that to the extent that the trial was tainted by error