the there are four issues in this case there are two primarily that i would like to address with the court initially the limitation on the defense m doing twenty five years to life in prison for first degree murder which he asserted should and then a conviction for voluntary manslaughter and then the prosecution's final argument at trial he says that reasonable people we've all been taught that sticks and stones may break our bones but words will never harm us and he was talking about the fact that what had happened to my client and his friend  wasn't a painful injury and that the only word that had been used in the altercation itself was that my client's friend had been called a bitch now what was not introduced in the trial was that immediately after this altercation well mr sosa is walking away laughing and with his hand in pain says i just fucked up to no and the defense is precluded by the prosecutions in london emotion from using the racially derogatory term and responded argues stiles is reaching into my client's car in his driveway to beat up these two people and so the people who are on the street even though they're witnessing humiliating but this is happening in public it's in a situation where not all of the conversation is is that easy to understand but certainly the defense attorney argued in two different ways to the court that this racial epithet is something that shows the the sentiment and the energy with which mr s you would have to demonstrate that there was some real likelihood at least or whatever standard or implying record whatever that the jury which didn't find that when you're in this in this my client is at that point fairly sixteen he's the height that i am without the high heels and forty pounds lighter than me deliberated for a long time in this is this is a close question as to whether this was at a level that a reasonable person would respond in this way and and the argument that defense counsel was able to argue that that it was a racially motivated offense because in final argument he's only able to use the standard type of version of the testimony and not the full extent of the testimony if the statement is in this bill at all it should be completely admissible but when he gets to introduce is without this key phrase and and the fact that he was able to talk about verbal abuse and and these other terms doesn't mean that the jury got to understand the full impact of what was happening that day and so it's fundamentally unfair in terms of what he was trying to present that issue should lead to reversal and when we talk about that short swing that had to take place in terms of of the jury's understanding of the events and whether or not there was provocation and whether the that was certainly provocation obviously there was provocation and there was obviously you know an extremely distressing i mean the problem here is that what that they knew what happened was sufficiently distressing that if they weren't willing to misconduct in terms of the legal opinion that was given to the jury that the drive by shooting the circumstance of shooting from the automobile and this being the fel statement in argument that it wasn't that he actually didn't believe that there was probably cation but that provocation does not apply to a drive by shooting and so given the evidence that was presented there should have been a complete explanation in the middle of the deliberations and we don't know the timing of whether that the course answer when the jury the jury was fully instructed on on all of these these elements and then they came back in can there be any consideration if this is a drive by shooting and it got a very expensive cancer twice and they got and they got an answer but we don't know whether that in terms of the timing came before or after the situation where jurors who says that legally it does not apply and the jury look to him as a lawyer because during the initial stages deliberations someone thought he should be the foreman because he wasn't lawyer so even though the statement attributed to him that i am a lawyer and this is my opinion was never never given and no one has really caught in that that was kind of a straw man that the district attorney put forward that that was the statement and so therefore no one heard that particular statement but what they what they did here was an opinion from someone who they recognized was a lot about the legal impact and it was contrary to what the judge with the court had instructed both initially and in response to the jury's question exclusion of this statement our position is that is not only correct but that actually all five factors support the exclusion of this evidence there was the statement was not probative as to the central issue in this case were as even if the jury could possibly draw the inference that because the victim made this statement later he must necessarily have made it before i ten were actually made or not the statement would suggest that they're that the victims what the beating would have bred in some racial or could have read in some racial message in the beginning i mean it's very hard to understand  opposed to some other possible explanations such as gang involvement  passion in the victim that maybe a jury would have taken that into account our position is that it would have such a slight marginal  racial remark and would have acted immediately upon it as opposed to running into the house getting the firearms and then searching out the victims later on that that might to began by saying that the error here or at least part of the error was that he didn't have his day in court to develop the factual record that's simply not the case in this regard i direct your attention to the reporter's transcript of march twenty sixth if pages ten and eleven work attention as counsel expressly elected not to develop a further factual record in this case  presented to air out this issue i'm prepared to go forward at this time without further disclosure of juror addresses your address has been for the purpose of developing additional information petitioners counsel so that i would be prepared to go forward declarations the court made its finding the facts based on these declarations and petitioner cannot now complaining about not having sufficient opportunity to develop an additional factual basis as far as what the state court factual findings wore the same record as transcript pages twenty nine and thirty the court makes this actually two findings of fact the first that the jury engaged in full discussions and the second being an explicit and also somewhat implied statement that juror wu did not state that based on his outside knowledge of the law and heat of passion defense can never apply to drive by shootings but rather that that he has such an opinion based on the facts in this case that's not misconduct and sharing your opinion that the facts in a particular case do not support a particular defense showing that opinion instructed twice on it sort of disproves any sort of credibility that of sullivan might have had in addition to the fact that his statement is rebutted by every other doc liberation that  petitioner and the prosecutor introduced in this case so petitioner hasn't been able to overcome the presumption that these facts of findings were correct merely by reference to the same exact explorations that the state court no misconduct because there is no suggestion that the statement of the law was based on his outside knowledge of the law is a suitable lawyer working for hewlett packard there was no suggestion that he had any sort of particularized experience with the criminal law such that he would state based on my outside knowledge of the law i can tell you that two defense attorneys are wrong the prosecutor is wrong and the court is wron time with the motion rather than to go forward with a motion for disclosure of the addresses of the jurors when they had declarations from a good part of the jurors in this case  it wasn't a point it wasn't a point where they didn't want to submit testimony but that they were not going forward with a motion to get disclosure of juror addresses to develop it further because they felt they had to prim for a motion for a new trial but they could show misconduct based on mr us all of the testimony he was there present ready to testify and the court denied the motion