after the sheriff's deputy said in the hallway in front of the jurors that this was a three strikes case the trial court court had an abbreviated hearing where he asked the girl well what is it exactly that you heard y would be impartial and fair the jury would equivocated when he was asked questions and he sat there and listened to three witnesses during the trial and during the opening statements where they said that m mckenny had a gun in his possession and as a matter of fact there was a pretrial motion indicating that not any of the information regarding any of mr mccann his prior record was to come in except for he did stipulate that he had a  when he heard the testimony and that well let me ask you this way ok from your standpoint the most damaging thing he could have for what was the most damaging thing that he heard was that this in there in which he indicated did that after he heard the sheriff overheard the sheriff talking he listened to the testimony and the closing arguments and he said that he thought about it that night after he went home and was thinking about what he heard during the trial and he indicated and he and i quote that after hearing that the testimony and after hearing that this sheriff this particular surface the first witness it all came together for him and that's whe overheard and you weren't sure what case he was talking about and he talks about his shotgun and it's a rifle that was found and he's a witness who would seem to me that if that w strictly on the evidence and put that aside you know they went through this whole ritual and then this own lawyer i always have a tough time for the territory sometimes i have i feel the same way every day yeah well i think that the fact that it was so easy for the it would have been so easy for the trial judge just to put an alternate and there when he knew that this jury had already heard that this was a three strikes case it wouldn't cost any time when you've been this is not like those cases where you hear the whole trial already and then you have a much more difficult decision and not a given i mean your client's counsel wanted this juror maybe for jury selection decided this was this was their best germans the prosecutor that was saying well we're not so sure here i mean isn't understand the trial judge's problems figure out what to do right right but i think that when it's the air here is that one of the most prejudicial information or one of the most prejudiced things you can find out at trial  verseeing trial courts in this fashion i think i think it's the to me the trial courts that have expressed to deputies in the past that they shouldn't be behaving in this kind of conduct  unfortunately has lots of cases to defend at least at the heaviest stage in front of us that's when we see it that's true and we're happy working on that for that so we generally have very little involvement at the trial court level and i  think honestly the majority of deputies know that you know this is a problem but unfortunately these things happen from time to time what if the your office said there are court is concerned about the fact that we continually get these cases where there are loose lipped directly he says and that there should be extra precautions taken i'm certainly was a point that was not expanded upon enough in the brief but i think the nature of the particular communication here which was that this is a three strikes case i'm not aware of any other published case out there on this really could cut either way and i think what happened in this case was after this colloquy with the juror the attorneys realized that perhaps this was breaking in favor of the defendant after all a juror learns wow this could be a  dreaming that this juror knew all about how the three strikes matter work well i don't think there is any indication in the record that this jury knew all about how three strikes works i think this is i think the point is this is distinguishable from those cases upon which petitioner heavily relies here where the jury is made aware of specific prior criminal activity by the defendant which is prejudicial because we get into that area of  using evidence as propensity particularly when it's closely related that for instance have the jury in this case learned that this particular defendant had thirteen or fourteen prior residential burglaries that obviously would have been highly prejudicial that the information here was just three strikes which of course raises an inference that there are prior convictions but says nothing about the quality of those prior convictions  case and i think that's the important distinction that i'm trying to point out here though those cases in which deputy has said something like this happened before or where there was information about a prior crime similar to the one for impartially and i think just to respond to a point of disagreement the jury here did not equivocate i think quite to the contrary the juror repeatedly said he could follow the instructions he would be impartial he didn't and this is another important point i think the jury itself and with that unless there are any other questions a right to be answer i my recollection of the record was that it was a shotgun that was found i could be wrong about that but i didn't pick up on that distinction the distinction is understood it's understood very well that information is still going out so i would do my best to read just regard what i heard in the hallway but i don't think that he was sure that he could and you know the cat the cat was are out of the bag and was just no way he could have put that out of his his mind and this case is different than the case where the sheriff's deputy says not was dixon for someone that he's done something like that before because when he actually heard the  testified say that this was a three strikes case that the doctor but he was in essence vouching for the truth of the matter that this was a three strikes case it wasn't something like he had he had done something like this before because it was the