sentenced to twenty five years to life in prison by a jury that was presented with extrinsic highly prejudicial evidence not produced a trial which showed that mr coleman had been arrested on a charge of felon in possession of a concealed loaded firearm approximately one month before the homicide three months after the trial one juror juror number five was so disturbed by the jury's receipt of this information and could not get it out of her head that she took the extraordinary step of writing the trial judge to tell him quote i know for a fact that the details of this prior arrest influenced the jury's decision in determining the verdict journal for five later testified that the jury reviewed this evidence even after another juror commented that they shouldn't look at it and that the jury's knowledge of mr coleman's criminal history was quote the white elephant in the room that you don't talk about before we get to the merits of the claim yes could you talk about whether it applies  the state test is not does not seem the federal test so the harmless error test for the state german or for a state term is kind a claim is different than the harmless or test for the federal term misconduct cl wants explains that that's a key factor in determining whether the state court did in fact properly address the federal claim other elements include the fact that the federal district court in its order did not analyze this claim under it referenced the fact that the state court of appeals denied the claim but it never applied to demonstrate will have not understood what my magistrate judge did i'm interested in what the state court did so i can figure out what the state court addressed the federal crime or rather side of the federal crime because sometimes they can decide a federal crime without or were required to assume later cited a federal crime even though the state court does not explicitly address that correct your honor and again i will go back to the key factor being that the state harmless error tests in the federal harmless error tests are different and the state court did not apply the federal harmless error test for this kind of claim which is chapman but counsel there's some language in the johnson case the talk that says whether the question is whether or not the california supreme court understood itself to be deciding a question with federal constitutional dimensions now that doesn't correct what exactly that means a month early sure but i think what it does mean it doesn't have to be exactly walk step federal and state and the fact that the state court here sided carpenter which cites a lot of supreme court cases federal supreme court cases in live there being a presumption begin with plus we have carpenter sorry in those cases how do we overcome all of that to get to where you want to be i think there are two answers to that question your honor first is that while carpenter does discuss a federal constitutional claim all of the state court of appeals cites two state cases talked about the state test not the federal test it may well be that the court of appeals thought that the harmless error test for the sake layman harmless error test for the federal claim were in fact the same but they aren't  let me give you a heads up on my answer to the carpentry question which may also be useful in the state to address i read carpenter and congressman's a lot of time describing and discussing u s supreme court cases but exactly and if you look also at the two other mainstay cases that the court of appeals applied which is people the danks and people view nestler they do something similar they discuss the state in the federal component or state federal claims but in the end decided  on the state standard and in fact don't hold the prosecution to its burden which would be required by chapman to prove beyond a reasonable doubt that the verdict was not hard if acted by the extrinsic information necessarily satisfy the d one component of so i like to focus on how we win this claim under brecht because the government has not minutes burden to show that mr coleman's case was not substantially and injuries lee affected by being exposed to this very prejudicial criminal history we when this claim the c's need the key problem with the lower court denials of mr is that they cherry picked evidence in the record and stripped the erroneous action from the whole when they were supposed to in fact consider the erroneous action in the complete context of the entire case and then decided that the jury's consideration analyzing these claims this court has emphasized the fact that the nature of the evidence presented as a keep component in determining how prejudicial it is it doesn't matter what evidence was presented against the defendant but that's not the primary consideration what's primary is to look at the nature of the evidence in the context of this case so for example what the jury learned from the information that was not supposed to be included is that one month before the crime he's been arrested with a loaded weapon that turned mr coleman into a very different person from the person that was presented at trial at trial mr coleman was someone who was involved with tagging crews but there was no evidence that he acted in a violent way there was no evidence that he was a felon there was no evidence that he in fact had a gun i would use an invocation argument is that they were not particularly reliable three of the jurors were impeached for lying in their testimony preliminary hearing to their testimony at trial they described the driver as wearing different clothing they described him as having a piercing in a left eye versus his right eye they were all arguably biased against mr coleman and in fact one of the things that the state court focused on was that they had excuse me that mr coleman was likely to commit this crime because of an attack that happened on his brother but if you look closely at the record all of the instances of violence and overt attack antagonism actually happened from the victim and his tagging crew who were the eye witnesses against mr coleman that you know instead of vice versa the violence was against mr coleman not mr coleman against them so when the jury all of a sudden learns that he's got a gun mr coleman has a gun that turns him into a very different person in an arrest or a gun ok season around  reporter page nine ninety five i'm just reading from the carbon we dance to the test to apply in determining whether germans conduct requires the judgment to be set aside quote a judgment or adverse to the defendant in a criminal case must be reversed or vacated whenever the court finds a substantial likelihood the court continues the ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test an objective standard that's the state test that's not a federal test yes absolutely the state the state the setting up in the state case for the state standard no question about that but i think opener itself the court does analyze federal cases there's no reason to but it seems either to mistake them or not to understand that there's also a possibility of cha and didn't address what decided i mean that's correct and i have trouble one we're getting an explicit attention to the state standard explicit reliance on the state standard there's a different federal standard it is more than that is more demanding is argued to them they don't respond to it and they say harmless addressing only just a standard i got i got problems with applying the ordinary presumption when the state court has behaved in that way i understand your honor and if i could move on to the  did she did testify later on a couple days later that the judge invited her in and she didn't state what she said in a letter actually in testimony she didn't testify there's there's one statement a letter that's particularly romantic that she didn't repeat court instruct them with celtic one point zero zero one point zero three and said that they were only supposed to consider the evidence at trial and that's exactly what jurors did here are notorious that otherwise they only looked at the evidence at trial even though through them did see this in this information they didn't code we can ask those questions you know there's an old joke about i dare you not to think of a camel did you think of a camel i tried not to your honor but again in light even even if even if there was is it the front door passenger side or is that sort of the backsliding or this one was unclear exactly what store but the shooter entered from the right side of the car to get to the front passenger side or the or the backward or they're not sure exactly which  and there was also the motive here there's plenty of evidence in the record actually shows that just who was actually looking for the victim during the dead because a victim had a tactician a younger brother earlier that day and so he was looking for a on the jurors own statements and the length of their deliberations and the problems they had coming to a verdict to counter the state's argument that the evidence against mr coleman was so overwhelming first the jurors did admit that they considered and focused on this evidence they refer to it two different jurors are for to it as part of the evidence package or part of the total evidence that they had to consider with everything else presented in the case they deliberated for two and a half days they request a total read backs of the seven jurors who testified that they had awareness of what happened the night of the crime in a case that was supposedly so straightforward with four eyewitnesses identifying mr coleman it's unusual that in a six day trial the jury took two and a half days to deliberate as to guilt was there any other serious issue in the trial except who would be dolly the driver was a serious issue in terms of identifying mr coleman as the driver of the van i'm trying to figure out ok how many issues were in the trial were there other issues besides the identity of the driver no i mean there was no other evidence identifying or putting mr coleman at the scene there was no physical evidence against mr coleman the eyewitness