contradictory testimony about the rate at which the medical science could assess the damage to this trial it's a highly emotional case it is a case in which although here in this chamber we don't have a large video screen of a child on a slab in the medical examiner's office those were the circumstances that this trial what this comes down to is medical evidence and our st order is that no rational trier of fact based on the evidence that was at trial would have been able to find the defendant guilty beyond a reasonable doubt the reason for that is because as steve points out they're pretty if there is evidence that could support a particular conclusion find guilty but the standard is not in the light most favorable to the nonmoving party considering only the evidence that the state cherry picks it has to include all the evidence the definite article in that admonition is that we have to consider all of that evidence which includes the testimony from dr bot but it isn't the finder fiction tending to disregard certain evidence  flow she can't told stodgy what she says in fact is that well the literature some because this way and the truth is you can't tell that's her testimony both on direct and upon cross examination one about the other injuries so the other injuries are important because the difference between the two experts is awash with timing and what dr bob says his that those injuries don't all occur at the same time a particular importance is the sub there is a bruise on the brain but the age of that cannot be told she cannot tell us that and she admits that there are marks on the child back on the head but that they don't match up to where the subdural hemato essentially you have two different injuries and the timing of those injuries what she says and direct is that you have a twenty four hour period in which those could come up that those bruises would look like that and we know that our money's in the custody of other people before she's in the custody of the defendant that she is with the family that there's an uncle who supposed to take care of her but the mother says oh i'm not to leave her with that uncle because he's too intoxicated clock in the morning to leave her we don't know the circumstances of what goes on before the reason why that medical analysis of the of course words his because what happens the major error in this trial and that is the introduction of the statements for impeachment purposes there are a couple really really important factors to the way that this comes in st of all as everyone agrees detective clifford martin is not available he's out of the country so their ability to lay the foundation  critical evidence and the state in their preamble in their brief before they even get to the statement the facts points out that there's this  assesses is that once they've asked this question and dr biden hasn't actually looked at the electronic records he's seen the detective statements the statements of the working are in the detect impeachment for bringing the set however as the cases of the cite from rio's and the anderson case make clear when you have an expert who hasn't the saddest those statements as a part of her analysis and shipments that she has stopped dead on the flip side you've got the question asked to you dr bob but those statements then have to be some way impeach in order for them to be relevant serve the court does not go through prejudicial versus probative assessable addition there are eight other admissions there's the grand jury called the stepfather the grand jury testimony of the mother there are eight prejudicial impact of it has to session tying and i have absolutely no clue of the course during his cherry picking out those particular admissions that are helpful to the state because the argument that the defense makes plague the eight hours of video because the prejudicial effect is much higher when you allow the state to say we only want these particular things cherry picked out but what they're saying is that his opinion is somehow s because he didn't go through eight hours of this video he did look this neither did their expert and the other is the issue is every time it creates such prejudicial facts to ask a question of impeachment by omission and then not proven up then the other errors that are in there the other impeachment why are those all important these are away from the state to be able to bootstrap in these statements that become question then there's no sense of quaint introduction of highly prejudicial material against the defendant the hypothetical question stands on its own experts us the question then there  the expert that state was was required to have that evidence met ed had to say ask those questions the doctor said go video then it would fall within what comes out of rios and comes out of anderson and that is that if you have an expert if that is established as a basis for an expert opinion that somehow theorize categorically different that that's so important why not ask doctors go via about it because what they're doing is they're not trying to impeach the boss you're back on the other track but that famine that impeachment by a hypothetical question it's it's a question of giving your x very different facts and ask him with w the prejudicial effect of bringing in that evidence only for the purpose of having it as substantive evidence in an old just past any prejudicial versus probative analysis in in the court and the way that it's done is limited by the defen to limit its impact but it is brought in and then argue by the state as subset of evidence if you look at the closing argument of the state the fact that dr bob has somehow been impeached by not looking at this doesn't commit this it makes one comment and says oh he's been paid twenty thousand dollars he didn't look at any of the material that's the sum and substance of that analysis it doesn't come in and say you can't trust dr bob because of this that's not the way the state uses it and that's our st argument is that the straight oversteps they say that the liver is torn in half they say the doctor to look at any of the materials and then you this as subsidy evidence as the the most silly part of their case because their expert hasn't been able to establish the time frame in a way they're reasonable fact to conclude that the state had proven their case doubt you know week in and then in the search for the truth or nice clean explanation for the trial centuries that cost her death is it your theory of the case that all of this happened somehow before she was placed in the custody of the defendant it certainly the c p r through the emergency room all the time that they spend trying to save our modest life all those become two thousand chest compressions which is an estimate but i think a reasonable estimate based on the amount of time that the paramedics and emergency room personnel say that they work on so now you have that the blood that is flown out into the domino cavity and you don't have the ability to set assessed when those injuries occur and is there chest explain some of the circumstances that both the mother and that the defendant saw throughout the day the sickness the the thirty patron the child those things could be there and that you could have injuries that what you have is you have case in which you have the doctors are in agreement about those factors about the time you don't have the interjection of this  mission which is truly not impeaching what he's already seen the detective stops there's nothing that is independently or about the yard except that it's a way for the state to bootstrap it get t purpose was to impeach octomom and the nd purpose was as substantive rebuttal evidence of his guilt it is unclear why defendant faced his confession to beating this child would not be admissible at trial and he has not explained in his brief i can only speculate as to why that happened but if there's a suggestion in the record that one or both parties initially believed that they couldn't play foundation without the detective who took the confession who was out of the other country at the time of trial please put that on the i don't think anybody was prejudiced or taken by surprise it was strategy calls on both sides he said to the defendant you knew once you could on a case you put on an expert who said oh this could have happened the day before but of course the state can rebut that by saying no it didn't happen the day before you admitted that you administered the beating that killed this child so there's no you know even though there is no unfair surprise argument really raised in the brief that's coming up for the st time and arguments are would be for for that there isn't a legal theory that would support it because  doesn't have a right to know ahead of time rather when the state will introduce the evidence he had the right to the scullery he got the statement he got the list of potential witnesses but other than that it's on him if he decides to put on a defense case he knows this could come in  have come in either way and of course defense can't complain about foundation now because he decided to stipulate he was given a choice and he decided as a strategic man or if you would prefer a you know a clear record verbal installation then clearly in the videotape where the defendant actually confessed to the beating realize that confession is fair game for sufficiency in addition we did have a minute circumstantial evidence you know that the child was in good shape when she entered the friend's exclusive care and that she was dead when the endurance arrived to find it was the only one in contact with her the ritual the people in the house that they didn't see her they both testified in the jury credited their testimony he gave a series of conflicting fostex when nations for the injuries again were too much medicine she fell down she's unresponsive and they got out of the shower maybe she had her head none of those make any sense any attempts to destroy evidence against her bath to wash away the d n a from where he bit her he conceals her face when he carries her up stairs and places on the sofa he tells his brother to step back and not look for her and look at her and wait for the ambulance and of course he never does anything to obtain medical care he doesn't call nine hundred and eleven he doesn't tell the mother where what hospital she's sick and she doesn't even write in the timeframe to one another it's true she didn't measure the gladder have any formula to apply but she said it was an estimate of the time they would take to die from internal bleeding based on the nature of her liver injur old and he agreed so he was it's record suggests he was you know referring to the wrong type of c p r and that they anyones personal testified that they did perform three people three finger c p r which would have been you know what you do on a small child through the capsule and that's what she observed that's what caused the death when she she said these injuries appeared all been inflicted on a timeframe to each other except for one minor injury behind the ear and there was no evidence of healing so they were all recent injuries and then of course you know the rez evidence that armani was in excellent condition when she was given to defend it that morning the grandmother and the mother said she was happy and healthy and her normal self aside from a cold and defendant's own confession idea that she was already suffering from internal bleeding because the evidence was that would make a person lethargic and and not wanting to move around and his confession is very clear that he beat her because she wouldn't take it now what he says just a couple of points i believe i'm on a real being later i heard it on the back or whatever later she still didn't want to go sleep she's getting up moving all types of stuff then i gave her a little bit later i go back out of the room she's playing with a toy it's not done by a boom boom boom i snapped on the butt and i snack on the bed put her in the bed i went outside and next thing i know she's trying to come upstairs so just a confession is she's too active that's why he's beating her so there is no evidence in the record that you know that the child was injured before and that's speculation on different it's part for the sufficiency if you don't have to give the same credit to the evidence he thinks favors his case just answered no that impeachment was complete the impeach in fact there was that there was information existing that he didn't look at the confession is different than that and i'd have to disagree with counsel about the record being clear on whether it did review that confession he says it was in a police report that may be true but i can't tell from the record what we can tell from the record was it was a e r o i and bottom was very clear that he did not review that and this is why we had to prove that up he says he says well when was this ruby if that was additional and defendant says he ripped or if he's telling the truth that's bad so he does not admit the fact of the confession he says well if he said that's why we had to prove it out the fact that he talked to police isn't the impeach in fact the fact that he admitted beating the child is the admit ed impeach in fact and as the trial court found we could not attend to impeachment that implied that he did make a confession without her in it up and then it so the trial court was right in ruling that the state was obligated to approve of that impeachment and again even if that was wrong we still have a coming in the substantive evidence and that's the part that definite hasn't really addressed there's no reason why  statements to be the basis for his opinion it was proper for us to impeach on the theory that he didn't consider all that really considered the ones that favor defend it and it was proper for us to prove that that up i suppose the point might make them the kind of thing you can that impeach him and it does if that expert thinks the defendant's statements to police are a chatty gauri of as the information that's relevant for his opinion and he clearly did because he talked about that you know part of the record it was in our brief it's something that we for throughout the it's an argument in conjunction to your argument about his statements coming in rather than stipulation what he says is that he's being questioned and the questions are in the stipulation from the detective and says so you're whipping her and he's agreeing with the detective and saying that part of the state is repeating that part past day that has caused that they're not matched up though there's no admission to those injuries and the court said on this is telling because the court decides any argument from the state that this is substantive evidence that is going to come in now that it could come in but that it's coming it that when the defense attempts to limit foundation it just comes in at that point the difficulty for the defended is that what you have is you have an impeachment by omission same he didn't rely on these things but that he did look at the statements from the police and the question of the state actually asked is whether or not there's a log he typewritten log of what's on the air ah that's the question from the state and dr bob's reply to that is to say well i looked at the police reports that were on the cd but i didn't see a video that's the sum and substance of what he says he didn't see from there he gets spun out into well we're now going to invent these statements for purposes that become a substitute by the time they get around to it in their closing argument that what happens is you have the introduction of this prejudicial information when you have experts who are in agreement on some of the most salient point