thank you good morning honest catherine young from the federal public defenders office for the appellant paul turner and i'm going to try to reserve a few minutes of my time for about mr turner claims in this appeal that the jurors observation of a spectator improperly directing a witness's testimony violated his rights to a fair trial confrontation presented defense effective assistance of counsel and due process of law in this case mr turner was charged with attempted carjacking and destruction of firearm at trial no witnesses identified him as the shooter the key witness against him was the victim tilford smith law enforcement officer dominguez testified at trial that the victim smith had identified petitioner in a photo lineup at the hospital a meeting mediately after the shooting two years earlier during trial smith testified he was unable to identify petitioner and did not remember identifying petitioner during the hospital photo lineup he testified that when he was in the hospital he was drunk in pain angry and suffering from substantial blood loss i think we know the facts here and since you don't have a lot of time i have concerns about this case as a former trial judge from the standpoint you know as the judge you're looking out usually the attorneys have their sacks to every one and you know and every trial it's a public courtroom so you have to let people in leicester excluded as a witness and every trial has families of the defendant has families of the alleged victims any number of things and these are like human beings and they make facial expressions and so i'm really concerned in looking at this in the big sense of if i had if i had been the judge here and i saw someone mekin you know some obvious signs and i thought they were communicating with a witness i would've called to a counsel to the bench i would have immediately said that but on the other hand all of us are doing different things during a trial we're listening to witnesses we're trying to and so this comes out after when everyone's talking so i'm really you know i don't know what's clearly established about something where people every court every trial is going to have people sitting in the audience every trial is going to have human beings in there and i agree that obviously people jumping up and screaming and doing certain things but to mask expressions that no one even sees sometimes during the trial i'm really concerned about whatever rule comes out of this and i merely having a hard time finding something that says because someone in the audience that no one sees while it's going on is you know is that extrinsic is that intrinsic evidence what is it thank you your honor i think it's clearly extrinsic it's something relating to the trial itself but it's outside the evidence and the rule here is clearly established priem court precedent that the jury has to decide the case based upon the evidence we do carry the because we're ultimately talking about  we that spectator conduct could be prejudicial in this in this way no we're not relying on the spectator misconduct because in this case we're focusing on jury misconduct focus on the question ok been anything no sense then that speaks to the issue of a juror reaction to something that happens in the courtroom but not from the witness now no and i think in carry out a problem well i think not very makes the point that if there isn't a supreme court precedent that's close enough there's no place to go there's nothing you can say that the state court opinion was not sufficiently consistent with in that case here no i understand but in this case we're focusing on the jury reaction in cary i think it was same problem contacting or following the one of the jurors and so the focus of that to rango case was on outside government contact with the jury this is about inside the courtroom thing but spectator conduct we don't have a case on point you know i agree and this is so we're focusing on the jury misconduct issue because in this case the jury took that spectator misconduct and we don't know if the spectator was in fact engaging in misconduct so we don't know what the spectator was doing its the focus on the jury that taking that anything because nobody really cares what the spectators doing but for the impact on the jury x the buttons and carry you could protest all you want to outside the courtroom the question is when you bring it inside the courtroom does  have an impact on the jury that's corrosive the supreme court doesn't answer that question it says we don't have a case that speaks to us so the state court decision can't be unreasonable why doesn't that apply here just as much because what we're focusing on is the fault i just told you that we don't care about the spectators conduct we care about the spectators conduct as it affects the jury how is this case different from that because the jury interpreted that conduct as affecting the test the jury is going to interpret the conduct and decide we better convict this guy because all these spectators are telling us what a horrible person a yes but this was something that related to internally the testimony of a key prosecution witness and what supreme court case makes that distinction meaningful well there are supreme court case maddux and i wasn't relying upon tauranga but trying to relies upon maddox maddux talks about the effect of extrinsic evidence in the jury in that case it was a newspaper article and so we're analogizing to those cases where the jury consider something that's not in evidence and it affects their view of the evidence of the spectator conduct cases a case distinguishes those where the state does something that makes it seem like the defendant is particularly dangerous and the concern is that the jury would would interpret the state's conduct in the courtroom and as an indication that the defendant must be guilty because he is so dangerous he needs to be shackled or have extra guards or whatever it is so so there the court said well stay conduct is one thing and it's effect on the jury but we don't have anything for spectator conduct so i don't see how the cases that you're citing which are outside evidence or whatever you know bringing the bible into the courtroom or whatever it is has anything to do with the spectator conduct case where kerry view was let in seems directly on point because what we're focusing on is the line of supreme court jury misconduct and then the jury tampering and i think the cases like carrie and like triangle go more to jury tampering and the outside influence on the jury not necessarily extrinsic evidence that bears upon the issues inherent in the trial and that's what we're focusing observation of a spectator shaking their head or nodding their head at trial constitutes a violation of the defendant's right to a fair trial and the carry the case is directly on point in that case as the court noted there were spectators in the trial that were wearing buttons with the victim's image as they were sitting in open court the jury obviously would be would view that and see that they were in the i don't know what if then let's say what if the spectator and this isn't so are off the i'm going to make some motions of the spectators out there there's a witness testifying and the spectators out there and makes like a gun with the finger and puts it to the head or the spectator goes like slice across the throat isn't that a little problematic that could be more problematic and that would be a different case and one that clearly establish that what is that it's not coming from the witness stand it you know i guess it could be you could say it could be witness intimidation but by the same token you know this it's like someone's like shaking their head or you know that i mean i see people out there and i've told people sometimes you know knock it off or you know are you worried you're going outside or because you don't want that sort of thing going on but it isn't really evidence but it certainly can have effect on people that are on the stand so it did and i think that with still be a different case from what we have been carrying what we have here and the reason the facts and kerry are so close to the facts here is because we have this very ambiguous conduct or behavior where it's the head nod versus the head say or maybe it was someone scoffing or whatever it may be or somebody wearing a button that's a very different type of conduct it's speaks more directly to the evidence in the sense that i look at at the case that the state put on and simply viewed from what happened from the witness stand it's an unusually thin case and that the key witness against defendant is busy saying he's not a witness against a defendant he doesn't remember and so forth the only key evidence here turns out to be what the officer says that witness said some time before based largely on a photo lineup not a lot of almost no direct testimony against defendant in the courtroom the officer can't offer his own evidence he simply relating what the witness is now denying anything kerry buttons are a little different that's trying to bring outside influence that but is not speaking to the facts of the case in this case if in fact jurors notice the mother gesturing in such a way is to basically give gives strength get the ball stir the prosecution's argument that the only witness the only reason the key witness isn't testifying is because of this outside factors that don't believe what he says today believe what he said to the officer some time ago that does speak very directly to what it is the juries are supposed to think about they're taking into account doesn't that trouble us no because there was compelling evidence as to the defendant's goal in this case what the the officer testified which was admissible in california courts as a prior inconsistent statement that the there's no evidence but corralling to going a little far as a prosecutor you're not it's not a happy day when your witness recants on you and so then you have to impeach them with their prior statements made near the point of time and someone shaking their head you know someone making those motions it is like judge cli it it plays right into the hand of the prosecutor that this witness is this witness is being intimidated that's why he recanted his story and there's the person sitting right out there doing it in front of it in front of the jury but unfortunately the judge doesn't see it the lawyers don't see it no one sees it but it's like it's yeah he has been intimidated this guy you know that's why recanted his story and that's why the other one's true and that's there for prosecutors right there at least first as to the evidence the the officer did testify as to the victim's prior statement and the strength of that identification that he may just two hours after the incident was strong he testified he stated to the officer i'm  hundred percent sure that it was this person that it was mr turner he identified his his skin tone he had in a fight his style of hair he identified the type of shirt that he was wearing and identified him and picked him out of the six person lineup a photo lineup so the strength of that evidence was before the jury and the jury can consider that that evidence and harvest the defendant found was he found in proximity or was he found it was in there something there was a description of a firebird and he was found in a firebird or something like that yes there's a description as to his car was a red firebird the victim tilford smith testified testified as to the type of car in the color and there's another witness that also testified he was subsequently found with his car so does any of this really matter i mean we're we're reviewing the california of appeals decision we can't grant a petition unless we say that decision was contrary to clearly established supreme court precedent that's a closely on point correct and there is know as as stated and by the supreme court in cary there is no supreme court law that is on point the says that a spectator's conduct constitutes misconduct for purposes of a defendant having a fair trial it simply isn't defendant's guilt commented on the strength of the evidence commented that the community you know was just waiting for a guilty verdict and also revealed to the jury which is not previously known to the jury that the defendant in that case had been previously tried for some offense for which they were facing life in prison all of that information was contained within the newspaper and was given to the jury during their deliberations that's completely different from what we have here where this is something that happened in open court some juries casually saw this person nod in the stipulation they didn't say that it affected their their deliberations they simply stated that they believe this person might be the victim's mother and that she also might be directing him to testify the way he was testifying that's completely different from maddox and the line of cases appellant has cited in her briefing where there is a deliberate communication with there's private third party communication with the jury and a third party or where there is any other type of communication that's directed at affecting the jury's verdict here for the jury's viewing a spectator's behavior of spectators conduct just as they would view somebody in the trial that's coughing or crying or reacting in disbelief that does not constitute misconduct and carrie is absolutely on point as to the effect of spectators actions and they did want to speak a little bit to the issue of prejudice that even if we were to get to the issue of president prejudice and consider this as extrinsic there was no prejudice in this case here again we have the prior testimony as brought through the officer as to the victim's identification we have the other witnesses to testify generally is to the characteristics of the defendant's the skin color what are the characteristics that you think critically a done afai the defendant the witnesses identified him as a black man that was mixed i think both of them identified him as having a mexican mix or some sort of latino mix they identified him as having braids and were going dark sure yes how many people in this area do you think fit that description here in pasadena also angeles maybe more so in greater los angeles but but at least within the photo lineup that they were that was it across racial identification no it wasn't the victim in this case was african american and the the photo lineup that he was given had six people that share the same characteristics and he was able to identify in states that he was one hundred percent sure that it was this person that that shot him twice did he claim he had seen this person before the incident in the restaurant yes ye his identification was based on what he saw at the time of the attempted carjacking but also what what was his testimony what was that statement to the officer about how long he had had an opportunity to observe the individual his name into the officer was that he casually saw him with in the restaurant they were that they were and so he recognized him as one when this person was approaching him i see my time is expired and i briefly answer your question yes so he testified that he casually saw him before but that he identified him from being the person that came up to him asked him for his keys and then there was a struggle he punched him the person the defendant mr turn in this case shot him two times that was the testimony he gave unless this court has any questions i'm prepared to submit a thank you thank you want to respond to a few things one is that there's no case that exactly has these facts i think that the controlling supreme court precedent that a case has to be based on the evidence presented from the witness stand is controlling here also  i guess i don't want to you know my natural cross examination comes out when you say well there's no case that has these facts and i'm kind of i'm jumping right to so you're arguing against yourself in it there's no clearly established profit no i'm saying that i the jury has to rely on the evidence at trial the jury cannot rely on extrinsic evidence and that's a constitutional guarantee because that is that's invested in the right of confrontation the right of cross examination the right to counsel all those things in here in the right that evidence that the jury's verdict be based on the evidence at trial and that is violated here i just also want to say that the the dec jury declaration said that this incident affected their assessment of mr smith's credibility so it was indeed serious and that also the identification the prosecutor talked about the elements of the identification of mr mr turner those elements he was the only one in the lineup his picture was the only one in the lineup that had all those elements and therefore the lineup was suggestive which was another