fifteen minutes per side station time for rebuttal we don't have anything after you so if you get a little too low questions here we get a little to interrupt us we won't worry about the clock that much ok and the microphones placed we can but i'm happy to answer any questions you may have regarding the additional issues the three witnesses in this case describe the offender of the arm robbery i was having for work distinctive characteristics  what kind of police action is involved here is what police officers police officers have to compose a wind up in the police officers this case they have the victim of suspicion correct quoting right and the state concedes that all three officers testified that because they had knowledge of this unique hairstyle what they did was have all gone to participants for a baseball cap to hide the defendant's hair and have them wear it but the cap facing pick an individual who was wearing the mark of high care on or the more factors or the more articles of clothing that were similar to what the witnesses describe the offender is bearing the higher  the offender there's no real published the search that talks about the statute that was in effect at the time of the wind up was conducted but we do have a way to which is a federal case and i believe it was favre who might have the case that the police through its activities spotlighted the defendant lineup there was no improper influence so here like in favor the defender was wearing the clothes he was arrested  probably not because i mean think it was a pine on if that was the case one fact that we we would now like to do something to conceal that tattoo or her but it would depend on if any further action was taken because conviction for armed robbery to simple robbery pursuant to argument one and two let's assume that we affirm ok and then you asked to remain on the case for preliminary one despite your arguments one and two and despite your argument and four why would you give a new trial which your request for a new taking the substantial arguments that you make regarding the identification regarding whether or not there is adequate proof that it was a gun that he held in order to accomplish his criminal enterprise  what we ask business for every man for for there to be a factual determination of this but i am in this the state agrees that you know there's you know over there should be a preliminary cradle hearing that you've got there grima but my question for you as well can you give give us any understanding of argument as to why it would be improper for us to affirm the convictions and still send it back for a preliminary prank or that's what the state is asking us to do and i'm asking you to give me give us that maybe argue with me to give us an argument as to why the court should address the other issues om because i mean time i mean his convictions not been reversed by this court but there still needs to be some guidance if he wants to get a new trial based on the crank law while there any other issues are i can speak for my colleagues i'm having a hard time understanding how we can how we could theoretically send it back for critical hearing for ineffective assistance to the franklin hearing first and not decide the issue the two issues have proceeded which is what you have for so now i'm not sure why you say something different now result of our questions or some law that would support that type of belief where we would not rule on the substance of issues it simply remained for the crankily well or happened later and that somehow that makes it less credible the initial description that was given by mr smith was given to the police immediately after he had just been robbed at gunpoint with a gun pointed to his face with his three friends along with him so he told the police what he could remember in that moment and then back to that later at trial he provided additional further description it isn't impeachment it's simply the fact that after he thought about it he was less frazzled it was out of the stress of the moment that his now engine familiarity with guns kicked in and he realized that what he had seen was  impeachment i think is a mischaracterization it's not inconsistent with what he previously said others have witnesses testified his witness was it is different it is it's different it's more of a description y but getting back to the charles case as you said just a slab in this case is a stronger case the facts of this case are stronger than what we had in charles here we have the three witnesses and all three of the witnesses indicated that they saw the gun as you pointed out one witness had the gun literally in his face and the other significant thing about the decision  charles is that there was a discussion about the fact that in the right case there had been discussion by the supreme court about the fact that there was familiar the with guns on the part of the witnesses and this court explained that they were not interpret ing right to mean or to suggest that the witnesses had to be familiar with firearms in order for their observation of the gun as a real firearm to be considered credible and that's another significant point from charles charles really just reiterate  what the supreme court has said in washington and right and so we would ask this court to follow its own decision in charles as far as the first issue is concerned  moving on to the second issue it's the defendant's burden of course to show that the a line of was suggestive and based on the testimony of the witnesses particularly ashley and victoria the defendant failed to meet that burden neither ashley or victoria testified that they made their identification of the defendant based on the fact that he was the only individual who was wearing the clothing that matched the description it's also significant of course that the defendant was a westwood in those clothes  and we have the marking the fifth most of the other cases you might hear one step here and they've done something about some of the other factors if there were more than one here we have multiple situation which when and perhaps in the case of michael smith that is true because he michael smith did make the statement that he made his identification based on one or more of the factors that you're talking about and that identification was properly suppressed based on his testimony it was but it was suppressed based upon the fact that he says he was there with other three in the room i think it was the combination of the two but we don't have that same testimony from ashley over toria and when asked lee and victoria were asked about the same things that michael was asked about what they testified to was that we recognized the person who had the gun we recognize the person that robbed us and they didn't testify similar to michael smith that they were in any way influenced by the factors that you're talking about and you know there there are numerous cases that we've cited in our brief that talk about lineups where people are the only person who is dressed in the clothing that matches the offender where they're the only person who's bald and has a beard where they're the only person who's wearing red pants where they're the only person in the sleeveless t shirt that the offender was wearing and the courts have said pretty much that his that's not a problem here but we do have one witness who i mean about the clothing and we know that here was different you know the mark on the face as well as the you know it could be a case where because of the multiple number affected it raises the issue but what the court is looking at here is whether it was so irreparably suggestive  there other people wearing a black sweatshirt and the group and i believe that she said something similar i mean if you if you look at the lineup photographs there were other people wearing black shirts there were other people who had braided hair and dreads not as long as i mean it was not is it not as long as his but there were people with dreads there's people and in black shirts there's there's people in in you know all kinds of hands so you know th the detective stated that i did the best that i could again they they arrested him in these clothes they didn't pick these clothes out for him they placed him in the lineup and the identifications were made it's very i don't here i'm sorry if i could just address one other thing in terms of the first issue counsel did file a motion in motion to cite additional authority as well the maclaurin case i would just state of this court the maclaurin case is wrongly decided that because in the court's words we armed the arms portion an armed robbery is more of an aggravating factor that there is somehow a lesser burden and it's different from a  offense in that sense but to prove an armed robbery the state has the burden of proving two elements which is the robbery the taking of the property and the armed with a firearm and both of those have to be proved not send it back for the critical hearing before decid kind of a specific rather than a more general answer in this case the crank all claims i should say the sort of ineffective assistance claims that he presented to the court where he didn't fight for me right but it's not she underperformed at the motion to suppress and that nothing would necessarily require that either you know of course but if there's an i'm just trying to say that there's nothing in those claims that suggests that they're related in any way to the issues that are up for resolution right now so in that sense it seems that those issues have been fully presented and can be addressed on their merits separate from the franco hearing so that would be our position that this court can resolve those and then it can go back for the pro marriage my family members are per for release as well