reschedule the argument that is very much appreciated we are here today because our easily did not receive a fair trial in fact his case was bookended in fairness first at the beginning when the court failed to ensure that the jurors understood and accepted the fundamental principles of the fair trial and then at the very end of the trial when the prosecutor not clearly shifted the burden of proof to the defendant one of the very principles outlined in for thirty one b in this brief the state supreme court your honor in which they found this questioning to also to be erroneous and and went into a discussion of what then is the analysis of plain error in the situation however it is playing error under the first prong and the question then becomes as the supreme court in bellingham clarified that the way that this is reviewed that it is looking at all of the so if in that case if that is the old main argument that was briefed by the appellant was the structural or the court is not going to reach an error an argument that was not raised so i don't think that that case stands for s evidence that supported the defendant's conviction was that pits identified mr beasley as the shooter easley's arc of the furtive behavior following the shooting and then third  he's this mother had purchased a gun with the same caliber which was used in the shooting and a case for his mother's guns found in his apartment empty the court however did note that this last piece was weak evidence to testify truthfully this commentary is fully improper and in order for the prosecutor to legitimately count on the defense's feeling to call on stuff as a witness there's a three part test the first is which they have to determine they have to said he was asked by one of the officers the state says that he lied about not having a phone number that's not correct the officer asked him whether or not he knew the phone number and he said no it's been my cell phone so the officers knew that it was in a cell phone too but there was get too far with the state then said not only would he not corroborate the defendant's story he would affirmatively corroborate pistons testimony but there is absolutely nothing in the record to support such a comment that was unfair commentary that unduly shifted the burden of proof to th think that's what i'm saying i'm sorry i'm not sure that it relates because even if you knew his whereabouts it doesn't necessarily you don't come up with a conclusion or the presumption that if i know where he's going to i control this person and i can't get him to tr he's in the city of these streets when they're playing basketball isn't really telling the police so that they have a legal realty to find the witness whatever this is the ability to find  i i think that if you look at the cases like this and no one's of the cited you could say the same thing about the growth of the ability of the defendant versus the state whatever might actually be able to get the number and it isn't she said that to him that you think there's a letter of the letter you're going to have to check the record if you find it to be salient point my understanding with this is something came about for the first time it's natural implication that flows from that stuff you know gun found right at that moment to make it made me understand that there was a crime scene investigation crew there throughout the night and into the next day and no god was ever found additionally in the state pointed to the fact that  additionally the defendant had did all this furtive behavior that the state said the defendant did is completely undercut by the fact that he was kentucky to his mother's house now to see the trials that he fled to kentucky well a few days later was thanksgiving the defendant went to his mother's house for thanksgiving and heard he was there that the police wanted to question him some more so she called them back and said hey i police get a warrant to search the submit to a search of his apartment and when the police are filling out the paperwork they have the wrong address on it and he says oh no no this is my correct address these are the actions of somebody who's guilty  possible inference of furniture it's completely undermined by a bat and i just want to touch very briefly if i might the question about control  was a read with your position that the defendant whether or not he had whether or not he had access to the phone number it does not mean that he had control of stuff it's entirely possible that had the defendant  been able to access the phone number they still would have found him and based on the information that his attorneys have they couldn't find him and we don't know whether the state ever tried to find him but he was equally unaccessible and out of the control of both parties here which is why the prosecutor was completely improper in commenting on his failure to appear it was extremely courageous when the prosecutor then said he would testify that what pissed said was the truth he didn't say he would corroborate our story he said he would say that pitts testified truthfully there was nothing in the record to support that and that is one of the last things the jury heard before it went to deliberate