because the trial court went against the manifest weight of the other in finding that steeples was fit to stand trial and in the process abandon its role as a neutral fact finder at the fitness of the relevant fitness standard in this case set forth by the u s supreme court in dusky in one nine hundred sixty in order to be a fit to stand trial defendant must among other things be able to consult with defense counsel pre stressed this was consistent with defense counsel complaint that seed was was unable to adequately concentrate or focus when she consulted with him about the case and attempt to prepare a defense now on its face dr praise opinion was credible internally consistent and sufficient to distinguish peoples from a mere run of the mill difficult client from simply doesn't want to cooperate with the doctor afraid didn't has three stages of escalating difficulty designed to assess mr see people's information processing abilities steeples essentially flatlined at the second stage of the test responding and correctly to every single was presented before he became so frustrated and agitated that he refused to continue a more practical side of things in addition to defense counsel's repeated complaints that her inability to adequately communicate with steeples was hamstringing her preparation of the defense prior to trial there was evidence in open court of the difficulties that was caused by such as steeples at one point for the first time revealing the existence of potential defense witnesses for the first time in open court rather than in a privileged returning client conversation and most obviously steeples apparently to defense counsel surprise essentially confessing to murder at the end of his set forth in greater detail in the briefs there wasn't have an answer in the record here that would justify a fact finder in disregarding steeples opinion of the trial court rely chiefly on three factors in doing so first the trial court and the state both frequently construed dr phrase opinion as being that steeples was not fit to stand trial because there was a risk that he would engage in angry explosive behavior in the court even if that were a basis for finding somebody unfit which without more it's not it's not an accurate reflection as dr friese opinion dr frey did say that she was concerned with the explosive behavior and process although she did know for instance that he appeared to become agitated perhaps on the brink of an outburst when he refused to continue with the booklet category yes she s where she sets forth the fact they suffers from an executive functioning deficit explains roughly what that is and stresses and it telling us that it's consistent with the defense counsel's report that he's unable to adequately opinion that he's suffering from a executive function deficit and is unfit because she's able to communicate adequately with the fancy house  inconsistent with the basis of phrase opinion in large part because he wasn't looking closely at two of the steeples memory information processing ability or ability to read his attorney to see posters referred to boy  basis of prior diagnosis of bipolar disorder there's nothing in the record indicating the boy performed the sort of testing that dr fraser and the only indication we have examined steeples memory at all was basically they said his memory was grossly intact making that you know he didn't see any problem but he wasn't looking very even if it were otherwise relevant it is seven years old or since fitness change over time on it's not well because again it's the nature of the conversation that you're looking at that you'd be wanting to have in a sort of searching you know conversation with  defined into an effort to examine the potential underlying evidence in the case and so i could have a hundred pages of rational discourse examination you know the able to cooperate fully with the story well again it's not first of all i wouldn't say it's one hundred percent you know sort of rational first of all it's just a general you know tell me your story complain about jena he's obviously very good at complaining about jena there's about thirty pages of him just going over various text messages he sent to mrs giberson which at points it's borderline uncomprehensible what he's trying to say and ultimately results in him you know essentially confessing to murder which again defense counsel was appeared not to we expect in the cheapest ask him the same question twice in a row  his direct examination testimony the mere fact that he's able to go on and on basically sort of giving his story isn't an indication that he's able to you know focus on other issues that defense counsel might need to examine as part of preparing a defense knowing more information about jefferson unconnected people that she might have fought with on previous occasions which some evidence of that may have did manage to come out at trial but just the sheer length of his testimony doesn't on its own supported an inference that he's able to have you know mean if i had a client that had informed me that he had you know committed the crime i would strongly advise him not to testify for all we know he may have disregarded that testifying if there was an interruption because of objection trial court ruled on it that the defendant was able to pick up where that question left off as that's correct  call me crazy but isn't that indicative of a guy who is like a better way to put it not exactly out of touch with what's going on in the reality of the able to converse about a matter of importance  issue is not that he's completely out of touch with reality i mean there's no issue here and follow a dialogue tell the story i mean you know if any cooperate with this lawyer part of this should be i his lawyer is i've her opinion is that defendant has to be able to return to an initial subject after dealing with something else and it's not his job to respond to the objections that's defense houses just right so i mean there's no objects judge that's a proper blah blah blah discussion back and forth objection over rule you may answer i've had lots of what this is then look at me and said which you repeat the specifically address his ability to focus through multiple you know topics of conversation that you would expect to find in a consultation between attorney and client consultations between attorney and client don't occur in open two questions after the scenario which you brought up but i also certainly understand that defense counsel and your questioning of the finance fitness and not following what is likely coun upon the defendant's statement as to his prior history in determining whether or not the defendant was better not so looking into the defendant's history of employment would in fact seem to be a reasonable thing and it could go either way you have the act you have the employer woman testified this guy's a nut case he couldn't get along with anybody he couldn't follow directions worth a darn i had to fire him after two so to say that this judge is going about it beyond what the statute says you can do is just incorrect he's doing exactly what the trial court is lock to do and there's no prejudging of this case i mean if you if there is any prejudgment he was just kicked out that first court never because the simple statement he has a prior middle history is not enough to require any kind of so this is a judge who's gone as he sat and then at excess of caution given the defendant a break trying to say ok this is my job it would be a violation of we have an expert opinion that doesn't say he cannot assist his attorney we have the investigator and the defense counsel to say this guy's hard to work with i had to talk with  him five hours about this one report we have the investigators said that he he was all over the place but he gave me names of people who investigate his conduct all the hearings both before and after and in people versus concerned was not that he cannot cooperate exist assist his attorney preparing for trial is that this guy's going to blow up in court and that is simply not the standard for unfitness so th yes there were problems but given the the us attorney state was at that fitness hearing but if you look over the whole course of the case there were five or six hear defendant can and could cooperate with this is turning his conversations with the expert why he has trouble on memory tests he told the expert his criminal history anything this is ok because you have total amnesia about everything you're not fit for trial because you simply cannot assist your jury here we have a guy whose memory regarding  plug it in for whatever worth and there was no error in receiving that the fact that this defendant has the wherewithal to plan a p t s d defense shows that he is fit shows that he is capable of her to submitting the trial and assisting his attorney if you want to it also suggests is he also faking his unfitness only memory tests i mean like i said the judge didn't try just not look if mission from it but it was if from ation properly before and that should be determined for what it's worth and he said it wasn't worth much but again you take all the evidence is for the judge you have the defendant's conduct in this case you have this conduct in in the other cases that the trial judge takes notice of with the agreement of defense counsel you have this expert test expert who says he's unfit because he's a danger of destructing the proceedings he doesn't say he's on  in self and it is the defense is absolutely right to testify and counsel cannot stop it if you want to i mean there's the council have no choice if the guy's in a system going to testify you have to let him and his testimony while rambling was show clear memory and it's really support of the  unique because the stache it also gives the judge the affirmative duty to determine for himself if he the defendant is unfit he also has a duty to raise the question you can you can examine it you know he get he informs the parties of what's going on this is not where he's ok i talked to mr drake and this is what he told me he doesn't rely upon information outside the record this nobody else knows about he puts it all on the table for the parties to consider the same time you know to object ok this you should not discerning this you should that notice of the east current trial proceedings and how that was behaving in those cases in determining whether he spit here and i think and that's perfectly reasonable to look at ok he's in trial on is he also fit here i'd same token if he is unfit and those other proceedings that is a strong indication that he should be found on here mr manson something i forgot to ask business finding basic idea of the problem though did judge share in the motion the hearing on the motion for a new trial comment on the defendant's trial testimony as further support for the  iness fine i honestly don't recall that i do have one final point by me defense counsel said that if the trial court's finding was incorrect we should be remanded for a new trial that is not standard before a new fitness hearing and then only if the retrospective fitness hearing finds that he was unfit do we have a real brief new trial it would be go back for a new fitness hearing it was simply trying to do his duty of making sure that this guy was fit in face of the state an expert who never ever said that the defendant could not assist as a church  you know have amnesia or anything like that but dr fray never a pine that he had any problem with his most memory it was his memory with interference that was the issue of his ability to deal with one subject transition to another subject and maintain focus and concentration appropriately throughout those changes secondly again just briefly on the first issue posing counsel you know notes at points that you know behavior behavior in the courtroom wasn't sufficient on its own to demonstrate you know unfitness to stand trial that you know people who are fit to stand trial can behave as he does in the court room it's important to remember that this is against the background only psychiatric opinion in this case being that he's not fit to stand trial the question isn't whether the his behavior in the courtroom shows he's done that it's whether provides a basis for rejecting the only expert opinion that was presented at the fitness hearing moving on to the second claim the issue here is not whether or not the trial court improperly presented evidence outside of  examination it stated it was erring on the side of caution it didn't believe that you know it needed to and if that point was clear didn't think that there was a you know a bonafide issue that would have required a fitness hearing or indeed required counsel what's important for present purposes is what the court says when it begins the hearing it changes to a slight degree what it's saying about its prior observations in the now says that it's a point his appointment afraid quote it wasn't based upon any observations actually it was contrary to the observations of the court but dr report dr friese report the findings in of itself that he wasn't fit to needed medication i believe that to protect mr sheeple due process right and he had to hear all the evidence and you to review transcripts was what his ability to get along on quote now it's entirely fine and indeed probably unavoidable  surprised if he gets back an opinion that's the defendant's not fish when he initially disappointed you know that somebody had an abundance of caution furthermore as your honor knows i've previously it's entirely appropriate for the trial court to rely on his own observations of the defendants in determining whether or not instead and if those observations were in fact contrary to dr phrase report of an entirely consistent with the due process clause for the trial court to just relying on its own observations begins the hearing by saying that you know basically i think dr perry is wrong because of what i've seen and then presenting a large volume of evidence he's investigated himself essentially to back up his own additional evidence things can get a little troubling but in that case you're all actively sort of leaving things up to the parties fighting you know what you believe potential issues are and ultimately you know not that alone in conjunction with other statements demonstrated bias on its own i don't think so so unless hearing for the question i don't see thank you thank you case will be behavior and also addresses the jurors expectation of the camera be that's occurred and this instruction to the jury pretty much solves the what would be the prejudice  not hear all of them so the jury was told it's not a crime to possess this sure they still wonder why do we keep hearing about what does this have to do with this case and the fact that it was emphasized so much in this case the prosecutor referred to it in the going to the jury or the jury's curiosity wondering why things are there i'm sure they wonder what is this be going to have to do with anything the answer is nothing but the fact that it kept getting popped about kerry's week in the jury's mind they must've assumed it means count possession of methamphetamine precursors when the evidence on the two was essentially the same it was a list or list but a presentation of all of the different items found in the vehicle and officer system about what they're used for in the came only from his metcalf who she was under she had agreed to plead guilty but had not yet been seconds so her testimony was that of someone who was required to cooperate with the need to say to protect themselves or the other person out in addition runners nearly all of these items are common hulls hold items and there was evidence that these two were moving from one home to a new home so they had all of their salt coal ash rubbing alcohol coffee filters so you know i don't know about your typical approving or packing list but that seems like a pretty unusual load of household these these chemicals these materials say it all so it's not simply the case that they were driving around in a mobile meth lab in a box in the in the back waiting waiting because they had lots of other things the given all of this evidence  ts and the fact that the jury like you said acquitted him of the one charge that the evidence was essentially the same it is reasonable reasonably probable that the jury would have afforded them if the prosecution hadn't so consistently   just it was misleading it was unnecessary and getting messy was what does the segment asked earlier the jury wants to know why certain things happened in every case the jury wants to know why everything happened but we have rules about what they can hear and what they cannot hear that's something must be relevant in order for the jury to hear but it has to serve some purpose and the video clip shown the b b gun falling out simply serves no purpose in this trial but to prejudice depiction of the p p gun yes it was it was part of the hearing emotion women had that segment number two of the video that was shown was the part with the with the video and defense counsel absolutely objected to it's not being relevant and the state was never even tempted to use split segment number two if you start with a b b gun falls out and the officers reaction to that are separate portions they were never treated separately was always consider one segment of this video so i don't i believe the state's position that forfeiting argument as to the latter thirty seconds of that segment is not well taken and that also has to  would have been forfeited i'm simply pointing out that the projects it had on the effect it had on the jury because of the repetition of the use of the word firearm and adding to the inference that  on able to show that it was harmless it's those reasons we  the state would argue the record does not show that barn pratt no the prosecution did not emphasize that it was a firearm the only mention of the firearm was in explaining how it appeared to the officer and in fact in the very beginning the first references to the to the object a trial prosecutor said in opening statement and then officer docklands testified only that it appeared to be a fire and then duck as was the first witness he testified that the odd bit was a b b gun and in doing the video the jury could see for themselves that when the object fell from the firearm well from the underside of the vehicle it appeared especially in the not a crime that he was not charged with a crime for possessing it and the prosecutor accurately stated in closing argument just explain the circumstances of defendants for rest and and why thanks it's possibly a real gun so he immediately puts the defendant in handcuffs lets him in this wild card until he determines what's going on with the firearm after he determine that it was a b b gun he then approaches the driver and asked her to step from the vehicle meeting spot staff has now turned into a stop that's being prolonged for legitimate reasons so that's how it was presented at trial that the only references to it being a gun or a firearm were in the context of how it appeared initially defendant place the drain cleaner where the passenger door panel had been when it was sitting on the passenger side of the vehicle she also testified the pseudoephedrine was in open view and accessible to both of them between the seats that she independent we're going to use the items to make nath and they were going to do that by then it was going to put the stuff in the bottle and she would help funnels so that was her testimony there also was luster's testimony that as you mentioned vehicle contained all the items needed her a complete methamphetamine producing laboratory except for two home and can't fuel and apps acid which typically was some type of liquid drain there so the officer also testified and i would emphasize the basis that was used to trial and that was to show the circumstances of the stop and defend its arrest and as your honor mention excluding it would be a logical the tape was shown if that part was taken out the defendant would disappear from the car on the tape what were the circumstances of the stop that were in doubt birth tape was designed to clarify it started out as speeding stop and then once the gun was discovered there's another basis or what appeared to be a gun and officer got consent immediately took into custody  also as was argued a trial or chilled by defendant was not question on the route roadside is the driver was he disappeared from view so there was a basis for this it was not emphasized  so the evidence of defendant's guilt we would say is is overwhelming that it wasn't prejudiced he wouldn't even have to get a harmless error but it was harmless error in that there was no reason reasonable probability that the jury would have found vehicle for speeding it when he got there information when he ran in the information the driver had a suspended license and the passenger had an active felony warrant that was the reason the traffic stop changed character at that point this has both  driver and a passenger had reasons to be stocking removed from the vehicle and arrested the b b gun simply had nothing to do with why docs or did anything else he did this case more importantly the video of it doesn't d response to counsel argument as to prejudice she's cracked we don't know why the jury acquitted on one but convicted on the other possible they were trying to come a brick and thought maybe finding on one count would be different than both we simply don't know but the point is the jury found it correct to walk on one of these charges when the evidence was essentially the same so i don't i don't think