jury verdict in this case is simply not worthy of confidence in the two issues for which see a way of being granted or one whether that events was constitutionally sufficient to sustain the second degree murder conviction  standard but he asked the court to keep in mind here that that standard is tempered by the state's burden of proof and that's beyond a reasonable doubt and the question is whether sufficient evidence was presented at trial to prove mr thompson beyond a reasonable doubt to second degree murder and mr thompson contends the one the state failed to prove that he was the driver of the vehicle in question from which the shot was fired into the state failed to prove conviction i point out that the only witness to identify mr thompson in this case was a gentleman named eric thrower and eric thrower testified he testified one full morning in this case and he was directly asked can you identify the occupants of the vehicle that shot mr ingersoll and he said no and then cross examination occurred and then there was a break for lunch with redirect to occur afterwards during that lunch break mr thrower got stoned on marijuana to such extent that he could not continue his testimony and his redirect examination had to be continued to the next day overnight before his redirect examination he communicated with the victim's father in the case and he spoke with the victim's father in the case and he denied talking about the case but he did admit talking about how the trial was going  i don't know what the differences between the two and that the victim's father had emphasized to him to tell the truth he came back for the redirect examination and now during redirect he could identify mr thompson is  day they were aware that he also testified the second day during recross examination that he admitted lying under oath the first day he also testified preliminary hearing when you previously made an identification that i didn't occasion wasn't based on his personal apology but was based on what the second passenger in the car had told him that was dante newton and daunting he didn't testified at the trial and denied being able to identify the occupants of the car from which the shot was fired and dotting it and had gone to school with mr thompson and his codefendant rather than as richardson and he should have been able to identify either of them correctly i guess is you know there was a smoking of the marijuana and you know talking to the talking to the father of the victim for most things seems seem like issues  even bring up in a mistrial but it seems to me the issue you're talking to us about now is really about his credibility thrower's credibility since he you know the jury could judge it but you're saying the jury didn't even have those facts  to judge his credibility with is that what you're saying the jury was aware that he changed his testimony he was a do they did they the jury was not aware of the smoking dope over the lunch hour and the phone call to the father or any basis for that that was very briefly inquired into cross examined cane which drained of jackson from the state and the trial judge instructed defense counsel to move on so they had a vague then because the jury knows why and they're going to judge throws credibility they've got a lot there now to process i must say much but how does that happen do you with the sufficiency at this point it goes decision see because it goes to the weight of the evidence you can't sustain the addiction because there was some evidence in the kit indicative of guilt we have to have enough evidence to prove that guilt beyond a reasonable doubt and and i think this is a good segue into the second issue of this case is obviously week that the more culpable of the two defendants the defendant who the state's theory was was the actual shooter he was acquitted at his severed trial so the this evidence is inherently weak and because that evidence is week the state had to engage in some deception or some trickery with respect to at least should banton have been down to the police station right after the crime and was investigate interviewed by detectives lord and she told detective  kendall richardson and thompson they came to my apartment the morning after the shooting a few hours after the shooting and mr richardson he was acting strange he was pacing back and forth the asked to speak to me when my be richardson told me quote i just shot a dude in the head and i don't know whether he is dead or alive material witness and she shows up for preliminary hearing with her own lawyer and their record is made that she went down to the police station she did make those statements but now she recants them and she had to motives for making those statements one there was evidence in this case implicating a mystery kwan england in fact a shell casings found in his car that was seen across the street from where the shooting occurred that matched the shell casing from the purported murder weapon known to the jury that the jury was aware that miss banton had these motives for fabricating her story the police that was made made known and they knew she changed she allegedly told detective lauren one thing and then changed her story and said something else that's correct ok so i guess i have the same question that judge moore it's just asked which is it  feels as if what you're asking us to do is disturbs due to our own judgment of the credibility of these witnesses for the jury's assessment of the credibility with respect to issue t we're not talking about credibility we're talking about impeachment evidence we have this witness witness banton who's called and paradoxically she becomes the state's star witness she's referred to in in closing arguments as the linchpin is knowing who who caused the murder yet heard this impeachment evidence her impeachment should have added nothing to the there's some context in which the risk that the jury will not or cannot follow instructions it's so great in the concept which is the failure so vital to the defendant of the practical and human limitations of the jury system cannot be ignor the state portrayed mr richardson's confession or purported confession deletion banton as implicating mr thompson in closing arguments they they say he confesses telly should banton i just shot a kid in the head fairness issue at least on the second aspect of your argument when it first the impeachment that it was admitted improperly i guess as impeachment evidence he made state law arguments on those something like you made a state law argument about the evidence impeachment evidence being in admissible in that there were actually four pages in the in the direct appeal brief that talked about clift in woody and these generally this court does not review view impeachment issues for constitutional violations generally but footnote six talks about united states reeses shoop wherein if the impeachment evidence was sufficient to sustain a conviction on its own and here was representative such that a due process violation results and also point the court's attention the united states versus woody where the impeachment evidence consisted of merely evidence of violent character  second degree murder prosecution and that case was reversed because the government as they did here urged in closing argument for the jury to give that impeachment evidence substantive weight i'm thinking about the correct case that was in that case it was the prosecutor who resigned and then the evidence in they found that essentially that evidence he recited would have been sufficient just stain the conviction but here we don't have you can't make the argument that this would state represented me just to distinguish it from shoop which seems to be what you're relying on primarily the state argued that richardson's confession implicated mr thompson and showed that he and weiner stand that i'm just saying the only case i see that you're really strongly rely on that shoop and that's an entirely different situation where the prosecutor was reciting evidence on it so would have been sufficient to sustain a conviction and i think this is how would this i've heard it how would this evidence have been sufficient to sustain the conviction against mr thompson one i think it's directly inculpatory of him given the purported circumstances to there's also this is going to be tory but i mean there's this issue of the videotape that's played and unfortunately the state court record is unclear what portions of this video are played but there's additional statements in the in the video that are highly problematic so problematic the trial judge stops the playing of the video and a leash and it represented the text of war my brother can take me down because he was in the car my brother and one other person knows and that video was played for the jury it was she will it have it was additional impeachment my time's about up so i would like to mention that with respect to the first aspect of the claim th impeachment evidence or the substantive evidence under the guise of impeachment i believe this court can review that claim to know about as for the rest of those he sees analysis that was grounded in its finding that this evidence was only admitted for impeachment per purposes in light of the record that that finding was completely wrong it was an unreasonable finding under twenty fifty forty two and that opens the door to this court's analysis of the case and  please the court i'm sherry johnson with the film attorney general's office for respondent i first like to address one issue and i think counsel corrected himself but he seemed to indicate that the jury never heard about the mr thrower's phone call with the victim's father and that testimony is in appendix page seven ninety nine where mr thayer on cross examination did state that he spoke with the victim's father  shortly before it closed around three am and they were the only two people in the car we have a security guard that was working in the parking lot at the ok corral right in front of where the shooting happened that observed the heard the shot looked up saw only two vehicles on the road the victims vehicle and a white what he described as a camaro or a firebird so that corroborates the mr thro a dent if i a vehicle is being owned by mr england on cross examination he stated that he may have seen a purple vehicle across the street at the wal mart parking lot but what's important about that is that the crime scene was the street and none of the eyewitnesses adin a fight a purple vehicle was being associated with the shooting also did it in detective lords testimony he indicated that during the shooting investigation the officer shot down the street and were diverting traffic into the wal mart parking lot so it's entirely possible there were a lot of cars in the wal mart parking lot we don't know that one of them was the purple crown victoria also in regards to the showcasing that was found in this purple crown victoria as detective work testified we don't know when that shell casing was fired we don't have a murder weapon that was recovered there was no d n a associated  mr england was a known gang member who was known to provide guns to other gang members and the jury heard detective lord testify we know mr england had possession of that firearm at some point however we do not know when that shell casing was fired with regard to the impeachment evidence petitioner has failed to rebut the court of criminal appeals finding that and the district court's finding that the evidence was offered for purposes and not to prove the truth of the matter asserted the prosecutor did argue that it for purposes of the merits in closing it in your honor yes he did make an isolated comment however that our position is that court to assume that comment was improper but the way that you assess prosecutorial argument is in context and within all of the record and if this court were to review the record it was clear that that comment which was made during the state's second closing was in response to a direct response to defendant's closing arguments and it was also made during a discussion of the evidence so i don't believe that this isolated comment affected the fundamental fairness of the trial if the scorch choose to review that waived claim  also the admission of this impeachment evidence did not violate due process because of the given by the trial court both orally before the video was played and also during the the written instruction that was issued me the defendant make a constitutional argument to the c c a with respect to the impeachment evidence or just an argument based on the local rules that state evidentiary rules i believe you are  asking me about the guise of impeachment coin and on direct appeal he raised a strictly straight law issue it appeared he may have cited to the federals but his claim was founded and the state law so that one you agree is not exhausted i'm sorry that one is not exhausted in your in your being yes ma'am yes you are not sure if you're right if you talk about them but i know you did this fundamental fairness to the exhaust on that i believe he did raise the under his due process claim where he argued that the admission of some evidence can be unduly prejudicial and i believe that the interview the video if this court has had a chance to review it speaks for itself mr bannon testified and gave an account of an interrogation that you know i want of the detectives is pounding on the table and she's being pumped for information the video itself shows a much different apis fear and it actually supports detective lord's recollection the miss mann presented herself at the police station to provide information and was  and the only that really that if you review the record review the video the only questions that the detectives are asking are to clarify and summarize to be sure their understanding the information that mr manning has offering this evidence was incredibly probative and it helped the jury make a credibility determination about these witnesses and therefore it's an interaction of this evidence was not a population of was it a violation of the defendant's confrontation clause rights to allow the video to include the statement made by the savard codefendant about clause rights no your honor under actually under this court's  case united states v clark were biased to use to view bruton through the lens of crawford and in doing so we consider whether the challenge statement is testimonial and i believe there's an order case small swear that that's also set forth in a footnote in a case that i don't believe was decided when these proofs were pending ohio v clark before the supreme court two thousand and fifteen and that's the case that was cited in the district court's opinion denying relief a statement cannot fall within the confrontation clause unless its primary purpose was testimonial and as the district court found mr richardson was not attempting to create charles testimony which made the statement in his friend's bedroom an hour after the murder that i just started in the head and i don't know if he's alive or dead i think he's suggesting it's well it's double hearsay i think he's trying to suggest that it's her statement her barton statement suggesting that clearly her statement to lord was testimonial but richardson's confession to banton which was a double hearsay asked aspect of it was not  i'm not sure i was confused by that argument i would say that richardson statement to ban could also be considered undiminished a statement against interest which would eliminate the hearsay and within hearsay issue but there was no hearsay objection so will never know what the would have been i agree i think the important thing here is that the statement was not testimonial therefore it didn't implicate the confrontation and i think i'll  the district court cited footnote nine in crawford pointing out that the confrontation clause does not bar the admission of testimonial statements for purposes other than truth proving the matter truth of matter asserted so it was completely proper for impeachment well then we will take this matter under advisement and counsel or excuse the la