that we'll be talking about whether or not the what the views discretion in granting the deposition and whether or not two hours to prepare for a deposition was an adequate opportunity to cross examine have point was theirs to decide whether the statement was visible considering whether the defendant had an opportunity to cross examin constitutional the opportunity is not simply to have a chance to ask questions so flat weighings the opportunity as an opportunity to understand the facts of the case and to confront the witness with those is wrong truth be tolerated prosecutor shouldn't do it probably doesn't require a  understand how all these questions were the said in his ruling on the case via the an availability of gloria she was seventy seven years old with a broken pelvis sick with cancer and about to go into major surgery as judge may see properly know that surgery is risky for the healthiest of all people  spanish absolutely not at the time that the representations from me by the prosecutor there was information that had been given by the medical personnel to the detectives and there were represented by the state in fact be the information that it changed from the initial representations regarding the initial impressions of the injury pres that subsequently there was an x ray taken and that there was a collapsed lung and that represent now by the record i'm peddling their information from talking to the detectives right at the scene investigating not only the crime scene but also interviewing the witnesses as well as at the hospital and was relaying the information as it was wouldn't be getting through surgery in two days and the depth of the hold on judge hand was specifically asked what the basis for the state's motion was and what they were basing their claim that there was a on the information that had been gathered from the victim's family as well as the personnel at the hospital but more importantly to work i think you'll agree of telling the judge the of the deposition that she was going to situate i risky to the people it's a risky proposition and to this woman who happened to be a seventy seven year old woman who had just been thrown down thirteen flights misrepresentation and judge lacy after reviewing all the evidence after hearing all the arguments properly found that there was no intentional misconduct yes it is really some misinformation had been given information that was available to counsel but was explicit the defendant's lack of negative effect that defendant was not a violent man he was able to set up for impeachment with prior statements made by others about paddling so by this demand he was saying i was ready to take on the i'm side of the entire state's case and yet now he's complaining that he wasn't ready for this deposition this reminds me of many years ago after the brady decision came down about ten evidence favorable to the defense to the defense in the federal court you may believe this but up until a few years same token what was available to the people at that time and i would direct this court's attention to the smith case which said something that in that particular case the defendant was told that for thirty five to entry deposition enough this was unfair and that clearly found it revealing the situation that does the situation require that the deposition take place and that the defendant and the stakes are in the same position at the time with passed away there was a time period of twelve weeks where the defense counsel felt that he was coming at that time to finish up his cross examination or needed needed to ask further questions he had that seething in this record indicates that anybody thought she was going to die she died that stuff happens and if that's the case then in every criminal piece the state should be allowed to pick evidence depositions by the defense theory which was my which was i'm cooperating and in fact destroyed by peter best in this case and failed it wasn't just a he said she said it was she said it was corroborated he said you know the fact that he was not prevented from the evidence that he claims he would have developed on during the cross examination it was presented by a different kind away at the pen at the trial level and so for those reasons really quickly i would guess that the trackways decision to admit the deposition not be a slam by the square if the clerk would like i would like to just briefly address on just the other issues i know that there was an issue regarding the cross examination of the defendant and i would direct discords yes i do we believe that it has right within the auspices of people versus turner the supreme court has said that out defendants credibility can be challenged by conflicting evidence and that is exactly what was done in this case that you know that the fact that there was a repeating of the question was based on defendant's decision not to answer a properly framed question there was no badgering in this case and the trial judge who is in the superior position to see the tenor of this cross examination properly exercised its discretion in not curtailing but and and ruling the y with respect to the rebuttal closing argument it was fair fitted no it was not raised in the motion for new trial and in fact one of the ten complaints were not even objected to at trial in context they were directly responsive to the was improper in any manner and this was a bench trial it had no bearing on the ultimate decision made by the trial court in this case based on the overwhelming evidence i doubt present hence the defendant as outlined in our brief i want to be brief and focused at page two fifty two of the transcript the prosecutors said quailed for modern review of the medical records and speaking  physicians who have treated her she is currently in a position where she may not recover from any surgery she undergoes a period that's a false statement on the same page the prosecutor