testimony identifying mr nolan as the person who's actually salt would have assaulted her should not have come in so the only question before this court is whether or not the admission of her testimony against him was harmless error here it cannot be harmless error simply because district court assume the rights were violated when the testimony was admitted but did not decide the question just decided that it was going to make that determination based on this assumption so i guess i'm adjudicated his confrontation claim on the merits and deny that why isn't the next step then was the added and reasonable application of any supreme court precedent and since the supreme court the only president that was cited was rock which you can't bar it's sort of testimony how can we say that the the state supreme court's denial of his confrontation clause claim was not based the notes of tape recording provided some means to evaluate hypnosis and the trial judge concluded that dr black back did not suggest responses in leading questions so well as a means in iraq where they could test that reliability and so once again it comes that the question of the admissibility of this kind of testimony has been expressly reserved based on wrong well i think it leaves it i mean and if it's reserved and i go to mer which is one of our cases from two thousand and twelve and says where the spring cordage pressley reserves the question there is no clearly established supreme court president so there i am and then i have to give some deference supreme court as to how they have done what they need to do well and i and i agree that you should give deference to the investment court because they clearly found well but we got a supreme court really didn't give make their decision based on spring ty whether or not there's proof beyond a reasonable doubt that he committed this offense but that's not the question under harmless error analysis the question is whether or not the admission of this improperly admitted of evidence had a substantial injuries effect on the jury's  let me ask you another question which is a little bit off point but nonetheless on point you haven't made the argument and i guess therefore you're not making it to the status can see that there was cause or oh no i really there i guess getting to the merits i'm having a tough time why the testimony is not harmless fair when we shards limited post it not a testimony is in once again i mean i think there's there's some cross examination i guess the question really revolves around cross examination writing what we're really looking at here again is the admission and whether it's harmless there and when i read the statements to detective sue detective kisner and you look at what the defendant voluntarily said which were both admitted i'm trying to figure out how this testimony made any difference whatsoever because if the testimony that points him it's her saying this is the man that sexually assaulted me without that basically what you have is a very circumstantial case and so really that's why it's so injurious because he can't he can't cross examine her on the basis for identification so l have to much of that smith said that if you look at the statements that were made by the victim to detective kisner approximately four hours after she was found she basically said that the man in the bar raped me numerous times that it was painful i told him to stop but he didn't so she had a clear recollection at that time of everything that happened and told that to th no it's not at all i don't think there was a confrontation clause issue they just said that the testimony of the victim was not reliable because they didn't comply with the the therapy type session where she went through this to help her with that so based on that posture of that's that's how we proceeded first time i i saw the confrontation clause argument constitutional right was it harmless so i would say based on that it wasn't very clear what that about its peak or did i'm at that time had said that it didn't decide if it was or not but it was proceeding anyway it was assuming that that's the district court that's the federal district court about and you're suggesting  where because of that error that's how your brief read and i was the way i saw you and i we i said the constitutional error was based on the fact that i'm not sure it was constitutional ira but the  of what the nevada supreme court if you can be as clear as possible i think just based on the facts that they basically first said you didn't comply with state statute and so the test testimony was not reliable the second thing there was a they conducted a chapman analysis which would seem to indicate that there was some type of error and that's what the district court based on the only constitutional claim on the merits held there was an error but that it was harmless is that correct i would say that's correct your honor as a what's you what's your position as to what the state court did you agree with said and it's just it's not as crystal clear as getting into all the hypnosis law that wasn't done by anyone either in state or federal court anyway help proceed with  i think one of the compelling pieces of evidence also comes from the defendant's voluntary statement he made numerous admissions he admitted that he had sex with her in mid on or oral sex with the defendant the detective asked him did you ever see any injuries or blood while you were having sex and she said afterwards after we had sex i saw blood on the bed she said she was one hundred period and that she should have told me so that tells us that after they had sex there was blood so he was present when there was blood he was trying to say that someone else did this but we found out later through the statements that the victim made to the sexual assault nurse that the victim was post menopausal had and had been for three years so we  he claimed that they went outside and then she wanted to have sex so he went to an apartment so i think that his testimony and the bartender's testimony show that he consent consent now concerts all sex with someone on that night someone else wrote the the defendant you know she never said that she had sex with anyone else in fact she said that she didn't have sex with someone else she asked him to join in the sex and all three of them had sex that's what he she said and she said there is no evidence of that obviously the other thing that comes into play regarding his statements as he said that when we left the apartment she was fine and then he said that when we went out into the parking lot apparently he was she had claimed that she had given him a credit card to buy beer and when he was going serious injuries that she suffered and that testimony of the sexual assault nurse that this these injuries were not consistent with consensual sex there are consistent with sexual assault there's a five inch gash in her vaginal area that was bleeding profusely it was deep and sean was bled to death that's not evidence of sexual consensual sex she also testified or said how were moving to the testimony of the nurse could well have moved to the testimony of the nurse but going back to her testimony also when she said  detective the she kept seeing his face floating above me in the tone of this voice i can i can understand your argument would you address the uncertified issue of bad faith investigation  three volume t in that first paragraph under the washer tri to be acutely intoxicated and who has suffered severe head injuries but here's his question do you recall anyone else attacking other than the black fellow from the bar i mean once again that's very that's highly suggestive that's twenty right back to mr no says i talk to this black fellow at the bar next thing you know we have the second way who else assaulted you besides a black though at the bar so he's putting it already in her mind that it's mr owen so once again we're back to this kind of really suggestive kind of wind up again we're just point right back to the same person so for him to rely on that seems kind of disingenuous oh ever we didn't have any objection is testimony i know but once again it just points to the fact that we've got my worry is that you can't really attack his testimony now by some by some objection you would have made of the time if you didn't object then i have to look at the testimony that's in the record as it is and see if that's enough to overcome if there was c