our final case for today is richardson against britain and we'll begin with ms dawson were called to the stand the jury however heard from additional witnesses eyewitnesses to the crime who said that kristin it the jury heard this testimony through the testimony of detective are asking so let me ask you this question i i mean there's a lot that seems to me that went wrong at this trial but we're finally here on her abuse corpus and what i keep struggling with is the fact that mr mobley had known mr richardson for a year or so maybe a little more than a year but let's say a year and mr mobley does identify richardson without any hesitation he's shot in the leg at point blank by somebody he says mr richardson and so even applying the brecht against abramson standard chapman whatever standard is out  there why wouldn't these various errors with respect to the confrontation clause wind up being harmless is the indiana courts thought even if they didn't express their conclusion in quite the right language yes  honor a few different reasons first it is clear in this case that mr mobley's credibility was not a given and the prosecutor addressed it on numerous occasions during closing argument in fact he was extremely intoxicated when the shooting took place the hospital diagnosed him with acute alcohol intoxication at the time of his admission he said that when he was shot he was confronted for example with the discrepancies in his deposition testimony about what time of day the shooting occurred and he said that he was confused given what happened he testimony also conflicted with one of the state's other key witnesses mistry their testimony was inconsistent as to the number of people that were present at the time of the shooting so for example the strong testify that there were three people present and mr mobley testified that there were only two their testimony was inconsistent as to the direction of the suspects car mr mobley said that it was faded facing north and was strong as well as mr miller said it was facing south and the only disinterested witness that testified as to what was going on and that was i who she thought it was in the courtroom and could she identify and she said no and so to be sure there was sufficient evidence but the question here is whether or not the problematic evidence itself had an effect on the jury a substantial and injurious effect on direct and so it's not a question of whether or not mr mobley's testimony standing alone was enough to allow the jury to convict but whether or not in this particular trial the erroneous lee admitted evidence that is eyewitness accounts in the words of the prosecutor herself had an effect on the straight and key also to this analysis is how the prosecutor chose to use this evidence during her closing argument if mr mobley's credibility and his identification was so defended and so sure for the prosecutor there was no need for her on three separate occasions to tell the jury that there was this additional evidence and in fact remind the jury that as to credibility it's not just chris and her final words in the republish he says there are other witnesses who saw him do it ok so that now let me ask you  second question we have the direct testimony of a scanner we've got the cross we've got the retract so walk me through that during the direct which is certainly not any time when the defense is inviting any errors during the direct richard says the name already comes out doesn't correct ok so as kono says he speaks to holden and he finds chris name and so the name is out there so what the state is arguing is that so much is said on cross it sounds sort of like a waiver argument to me but at least a harmless argument that if if richard's its name is coming out on cross there really isn't anything left to say errors invited whatever you want to describe it as and then redirect of course the prosecution solves  not the same amount of information did not come out on cross as came out in both direct and redirect so on cross if you look at the actual transcript of what came out on cross your honour's in this i would draw your attention to a sixty three and a sixty four in the appendix we see that the only things that come out on cross is the fact that the questions that detective asked conan asked of mr mosley in the hospital was the name chris was included because of statement by lazarus holden and a person who phoned in on direct however we hear that there were other sources sources in the plural that indeed identify the shooter we also only learned on direct and redirect that it is eyewitnesses to the crime redirect there are a number of different exchanges and this occurs at a sixty six through a sixty eight where we hear that immediately the day of the shooting the detective knows from sources that were present that never comes out are you direct so it is only on direct and redirect that we know in fact that these are witnesses to the crime or identifying the store richardson as the shooter in addition and i agree your honor that there is a question of waiver and i don't want to speak to cases that we didn't cite there are when you're talking about waiver we did point out to your honor in our reply brief that you have to have a knowing and intentional waiver and so to say that what happened on cross was a waiver is belied by the record for two reasons a we would maintain as just noted what came out on direct and redirect what was broader b mr richardson's counsel objected to the use of these this evidence during closing by the prosecutor and the judge over objection and there's just simply no the evidence if you read the transcript in this case it is quite clear in our view that mr richardson is counsel never intended to waive his right and in fact if you read the exchanges how are they supposed to respond maybe this is a question for your opponent  once his name has come out on the direct isn't mr richardson in a very difficult position anyway even for cross that you're absolutely right and we make that point in our brief as well which is that you know simply cannot be the case that if the government of the state violates the confrontation clause on direct that the defendant's hands are tied he must either remain silent as to that evidence on cross or for go his confrontation clause rights in order to address the very air that occurred and simply hope that on subsequent review his conviction will be overturned and we maintain that is not the case state of the law and that in fact what happened here was that what came out on direct and redirect and closing shows we also maintain that the government's position that this came into the course of investigation and to explain the officers decisions in this is not supported by the record if for no other reason than if you look at direct and this court said jones at page two hundred forty two footnote to that you look to be objective and to show and on direct if this was really coming in as the prosecutor maintain to explain why mr richardson photo was in the lineup there was no need for the third inquiry so i did that need explaining anyway we would maintain that it did not and we did point that out as well that in this case there were no allegations of police i officers behavior at the hospital just stunning like can you show me chris richardson's picture not just a picture of the shooter here of course you could show chris richardson's picture you've known him for a year  and bringing up the name on direct under the for whatever reason and using it as substantive corroborating evidence it's a terrible record at the hospital your honor mobley identified chris as the shooter before detective us going to ask him any questions specifically about chris richardson well thought he but when these showing that the photographs he doesn't say you know point to the shooter he says point to chris richardson that's correct your honor but motives are terrible that's that's not any kind of by asking the question that way the pointing to the photograph was completely useless it was tainted i don't think so you are because nobody had already said that chris was the man who shot him and then and only after that did the officer provide the the written questionnaire of the statements and which bridges his name was included and then he showed him the photograph and how to my kind of like chris when he said show me cruz what we do with all these jury questions to juries obviously extremely interested in the holden account this missing you know guy that is just a thin air account and they're asking the very kinds of questions that would have been asked on direct cross examination they're clearly using it for of this baloney about course of investigation which we've disapproved of and i don't see how it comes in here as far as the jury questions your honor only one juror questions specifically about holden and he asked for questions that showed the jury was at least that juror wasn't even sure about what holden said to the officer well but what he's the questions he's asking though have to do with how reliable is holden did he live in the neighborhood did he you know did he see things it's like i mean it's just one more piece of of the puzzle from reason to feel no confidence in this ruling how reliable the account was prosecutors later questions on redirect and stay mince those statements and closing arguments were different in kind if the statements were at all presidential to richardson the reason they're presidential is because other sources said that richardson was the shooter and so if the same is it any prejudice prejudicial value at all then the statements on cross examination have the same prejudicial value as statement need to be shown i'm absolutely baffled at this at this rationale because it seems to me the police present an array and maybe it has a picture of a suspect and maybe not you know sometimes i don't know why the witness needs to know or the jury needs to know why was richardson's picture in the group it's highly prejudicial and practically zero probative value for anything legitimate it was necessary to show that there was a good reason why do you have to show that when you're saying that but i understand you say that you're briefed too but i don't understand how that assists in proving the crime i don't see how it is cysts in proving the identification if the witness if the victim says yeah there's the picture of the guy who shot me you know that's fine it doesn't matter to the witness why the police happened to i mean this is we have the earlier bit in the afternoon of the argument about the argument so to speak take your argument away from my front porch and i just don't see how  sneaking richardson's name in you could do that in every case it would really eliminate a lot of work on the part of the state that's for sure because you could just get the suspects name right in there through hearsay and ignore the confrontation clause but that's not the way it's done your honor we know that there is a course investigation exception to the here's what i've said it's very narrow and i don't see that the criteria are met here it's narrow in the sense of the they must bridge gaps in the testimony that's not the only thing we've talked about though we've said there has to be some reason to make the way the investigation was conducted relevant otherwise you could put in the course of the investigation every hearsay lead the police have every detail and that's not what the here with the confrontation clause permits and even if there were hearsay violation here you if that's correct and so if they had simply rephrase chapman in a way that everybody could understand was a synonym of the way the supreme court did we've many times you know deferred state where they say  are going to find it right away but they say basically there was sufficient evidence to this is sufficient evidence to render the admission of testimony regarding non testifying witnesses harmless that's how they wrap up that that's correct your honor that that's what they concluded their opinion and that was in reference to the statement that to the standard that they'd already laid out and this is the standard they laid out the improper admission of evidence is harmless error when the conviction is supported by substantial independent evidence of guilt such that there is no substantial likelihood that the question evidence and that's what worries me substantial likelihood does not necessarily say to me harmless beyond a reasonable doubt substantial likelihood sounds like a much lighter standard it's certainly a different standard your honor and unconstitutionally lighter well it's richardson's burden to show that they applied a standard that contradicts the standard one and i'm we're talking about the same thing there's no substantial likelihood doesn't if harmless beyond a reasonable doubt requires this showing in substantial likelihood only requires that showing we have a problem and yes then the next question would be to go on to as an overall review of whether there was indeed a competition close by election and even then richardson has to show that he was actually prejudiced by these statements which he can't do based on the strengths the strength of the state's case mobley had known richardson for at least a year he was able to identify him as the shooter because what about his blood alcohol content his impairment his heat inconsistent statements you think there's no way that a jury might not have been skeptical of his identification mobley testified that he had a nice buzz but he was not so drunk that he wouldn't recognize who shot him that's for it and the jury had to believe that name to mr mobley prior to questioning him this is located at trial transcript page two thirty four and ph q thirty four is in volume three and he says the question is with respect to exhibit a and those are the questions would it be fair to say that you went in those five pages of with those five pages of questions that are blank that is correct and then the question is and you show these to mr mobley before you ever even talk to him answer yes you can find those questions at record on appeal starting at page two twenty and as noted in our briefing they repeatedly contain the name cricks second as to the jury questions if you look at the actual jury questions trial transcripts you seventy three into seventy six there is nothing in the record so far as we can tell that suggests that it was only one juror asking the question and third as to actual prejudice this court need only conduct the actual prejudice analysis because under brecht that analysis itself the question of chapman harmlessness of sumant by the correct analysis and we would much and thank you as well i believe you took this is an appointment from the court and we appreciate your help very much thank you and thanks as well to the state we will take this case under advisement and the court w