morning honors may it please the court jason was soaking on behalf of appellant goodman imagine you're putting together a one thousand piece jigsaw puzzle and you have most of these pieces in place you can see there's a sleigh there's some snow a sack a presence and someone in a red suit with white fur trim but you're missing one thousand and fifteen dollars pieces that would reveal the face of the person in the sleigh without at least one of those pieces you cannot say beyond a reasonable doubt whether or not it's the grinch or santa claus and that analogy is apt here because two of the main issues that we are asserting on appeal have to deal with whether or not there was sufficient evidence or there was such grave air that the substantial rights of mr goodman were affected like to begin with the crawford six the th amendment area honors as this court knows this is going to be reviewed on a plane or because the issue was not preserved low this issue is about the hearsay within hearsay testimony that officer dead or more testified to with regard to mr blackburn's on the scene confession that he drove this car and he drove the car that resulted in the deaths the tragic deaths of three people now that excited utterance that mr blackburn said to a cop i drove i was driving i'm a bad man i'm the mid city menace i believe is what he says that is very very compelling evidence and it is the only direct evidence in this case of who was driving but that evidence was immediately undermined by offers officer dead or more when he went beyond the scope of the question asked of him and he said mr blackburn then recanted that statement now recantation of that statement was not heard by officer way of knowing who mr blackbird had made that comment to correct at at that moment however it wasn't until later if there was a listener that it would it was by  doubling down of his confession where that's when he says he's the mid city menace and that he's the one who was driving he says that to the mts in the presence of off of other officers officers other than mr denham all right  or more said the black burn spelled strongly of alcoholic beverage and had very sore speech that is correct so when officer desperate or more says it non responsive answer the judge that will kill probably anybody in this courtroom point forty four but he didn't know they had it but he knows that he's wrong so why should the judge just say well he was clearly saying that to a did this to geisha even though he's  further of of officer data more outside the presence of the jury and determine exactly what is going on here because this is such a significant piece of evidence in this case i mean imagine all look at all the other evidence in this case there is nobody who can say for certain who was driving this car because of the washing machine effect and nobody's wearing their seat belts that rolls over it's on fire people or pull pulled out by good samaritans nobody knows who's driving at the moment of this crash and so when you have a person in that vehicle confessing on the scene that he was the driver that is very very critical evidence in this case  further he would have found out that it was testimonial and that it was hearsay those are to me are two separate well i think at the moment that officer dead or more testifies about this recantation there's no doubt that it is hearsay because he's talking about what  mr blackburn says out of court mr blackman isn't there it's by definition hearsay there may be some kind of thread that one could pull with further inquiry which wasn't done about whether or not it falls into the testimonial issue whether or o at that very moment you don't so the court at that moment sue a spawn take can intervene and say wait a minute we need to figure out what this is because of its significant impact in this trial literally what officer dead or more is he says mr blackburn was driving the cop car i know that because i he confessed to it that's why i took his blood and that's why i concluded in my police report he was driving and then almost in the next breath says no he wasn't because he said to me or to somebody else he wasn't driving it was mr goodman who was driving so now you have two completely contradictory statements that really can become the fulcrum of a conviction in this case while mr goodman is being questioned by officers it is now clearly a testimonial statement that requires at the very least some kind of protection under the th amendment such as procuring mr black defense's job or obligation to prove who was and who was not driving it that is the burden on the government and what the expert witness with regard to mr seabury driving mr blackburn's confession the eyewitness testimony pulling ms six toes out st that eyewitness saying i think she was driving that all creates reasonable doubt those are the ten pieces in our puzzle that are missing and we can't say who was driving reliably this is a situation where the evidence is by no means overwhelming it's far far from overwhelming and that brings us to the instant insufficiency of the evidence issue here before you switch that issue that approaching this is if it is hearsay being but instead to show why he went ahead and took somebody else's let's sample you know your honor and the reason why i disagree is because what you have is as i said earlier age statement more of something he directly heard about mr blackburn confessing to this crime and then because he knows he's a government witness and the government has not putting mr blackburn on trial there putting mr goodman on trial in the next breath he does everything he can to say in effect really it was mr blackburn it was mr goodman and i took his what sample but why did he take mr goodmans blood sample the only basis to take mr goodmans blood is the confession by mr blackburn and counsel for the government obviously skilled at their job does not ask officer dedham or why they took mr goodmans blood because they know the answer is hearsay and of the matter asserted is was mr goodman driving that is that is the only thing in this case that's being question that is the entire basis for the trial they are offering an officer dead amours offering it be determine for what purpose this answer came it by looking at the question which it was a response no i think you can look at the circumstances surrounding all of the questioning as well as the trial itself why are we there why circumstances before you can rule on action you know your honor what i what i think this situation presents is when a confession is discussed testified to and then no  diametrically opposed testimony in one breath and then the other that somebody is accusing the person who is sitting there on trial who isn't president trial and who the government knows may not or there's a good chance may not show up at trial and it was incumbent upon the defense lawyer do ask for the conference to to take a break and to discuss this and because judge to know all the judge knows is that there was a the fault is not with the judge but with elsa will not always up and asking for recess to discuss this and more as are asking the judge to admonish the juror to ignore the answer or you in response to both of you judge paul dox questions to get to the heart of the issue this is a th amendment confrontation clause issue and judge the trial judge knew that a confrontation clause a th amendment issue is alone sufficient to create a violation of the th amendment and result in a reversal and that's why this is not just a standard run of the mill hearsay object when considering the question that the answer is undermining the confession now the officer who is testifying his answer makes it seem as though you know but we're talking about confrontation what what you know so  said at the hospital later that it wasn't him who was driving he recanted from that testimony alone the two sentences or two lines rather in the transcript the judge should be able to at least understand that the statement was made the officer dedham or now it turns out that that's not correct which makes it hearsay within hearsay but at that moment it's a statement made to an officer which implicates the th amendment because of officer dedham or is questioning him you've got a testimonial at trial your honor is what is clear at trial if i may continue i know way over my time i guess what is clear from officer dead amours testimony under cross examination is that mr black that he heard it from officers and what we just know know whether mr blackburn told the e m t if it we know he told the mt officials because the document that you gave us that proves they're right that's correct and so what we don't know folks so we know for certain at blackburn recanted to police under interrogation situation and that is the information that officer dead or more testifies to thank you bit more like a ten thousand foot view or maybe i should say one thousand foot view or even a one thousand piece chick's up will the only piece that's missing is is the face is that santa where the grinch and judge back correct you suggested this really what needs to be emphasized is that nobody thinks true blackburn was driving so to the extent that his so called confession may have had any value it was really undermined by the fact that it  was true and nobody thought it was true so that's that's really a red herring and the same for any suggestion that might have been driving there's just no credible evidence of that just that dispute was whether it panel has asked and the government's position is that a it was not hearsay it was not offered for the truth of the matter asserted certainly and admittedly the answer to the question went beyond what was asked but if we are looking at the purpose for which the evidence was offered it was to explain the investigative step of having mr goodman blood drawn that was continued and later testimony about how search warrant was  purpose is not for the truth of the matter asserted the purpose is to explain the investigation so that takes it outside the realm of the th amendment and then also that it was not testimonial and even as we he told the deputies and officers at the landor sage west hospital judge bacharach as you point out the supplemental report indicates that he in fact told one of more teas so the circumstances just aren't clear i would even that statement on cross examination doesn't establish that it's testimonial to moore says he told the deputies and officers that the lander sage west top hospital so let's assume that's accurate  testimony that it was in response to interrogation or questioning it might have been another quote unquote excited utterance we don't know it's clear at least to me your honor is that deputy dead or more probably doesn't know the exact specifics of that situation so it's not obvious to the judge that this is that this is testimonial either so the contest context indicates it's not hearsay in mr goodman believe in me and your honor in the supplemental f b i reports that are part of the proposed supplemental record i believe that is discussed where mr blackburn is saying make makes comments to the effect that yes mr goodman was driving well and that is part of his testimony and that is it wasn't me it was goodman so doesn't at least that part of d the statement make a that may be accurate your honor it's at least a step down the path you give me that certainly a step down the path your honor i mean the case that i quoted for the definition of testimonial talks about whether the purpose is to provide evidence i think or words to that effect so certainly i think that police questioning in a clearly investigative sort of scenario responses to those questions yes that would almost certainly be true money in this record is there  to supplement with transcripts of police interrogation if it's true recordings of or maybe a recording in two parts i believe it's a recording in two parts of an f b i interview i think the day after the dead or moore's trial testimony about this recantation was that blackburn had recanted to deputies and officers at the hospital i believe the f b i interview was in the jail the next day supplement supplement the record if you look at that i've looked at the written materials your honor i can't recall if i've actually listened to the interviews be that as it may my question to you strictly is was that material ever the officer is it his reference to the accusation of goodman could not have come from the f b i agent whose recordings we were asking to supplement the record with but had to come from a different officer because it came at the sage west lander that your position yes your honor ok thank you now that's  as i really don't have anything else to offer on the confrontation clause issue except i would i would echo the comments that have been made defense counsel of course could have objected could have asked for limiting instruction you may have had tactical reasons for not doing that i guess i wanted to emphasize emphasize the point but this this is an issue to the extent that it was an issue that really needed to be addressed below timely it's not an issue