referring to is the february th february th two thousand and ten notes where you know it deliberating for eight days yes they come in they give this note to the judge the judge says yes you cannot use this at all and then they go back and they come back with a guilty verdict i think it was it was a cry for help it's that the judge told them you can't use this statement against our johnson reposing argument the prosecutor said you got to use your common sense look we don't what you're saying but you're asking us to remove from our minds something that we already know now when they so pointedly say and we can't use it at all is that right he said yes should we not credit the fact that then they didn't use it at all i would say no they would that's simply if what britain said burton which you have planted that in the jury's minds they were using it they were like how do we come to a determination base their decision making on what their expectation is and their expectation is formed by what they know in this case they knew everyone knew that arthur johnson was the other guy a brute and basically says you know we can ask the jury to do certain things but that's a asking too much of them that's the way i read it and then again they think that's the reason the quote is like you're trying to extract something from somebody's mind either consciously or unconsciously but we understand we term to connect the dots that that in and of itself may not even be a violation but we look at a number of factors to determine harmlessness right and we're we're locked we're talking about limiting instruction but what about the other the other limitation on cross examination but the complete absence of cross examination that's i would agree there is i think there's a difference when again mr johnson did not get the right to confront the right even though his statement was introduced  significant distance here we have dione being close being certain there being no issues there presented in the record of his his perception being impaired and if anything his motivation that is getting revenge for the for the against the person who had hurt his brother which would seem to lend credence to his testimony i would write respectfully  different than what we're doing here this is the no vote this is this is again in my book the barbary we're talking about one juror that that is the difference but it's not necessarily just by that is when we look at the how do you distinguish the here i don't know if i was a juror there's a little bit of what did he really see what happened there to that is not i agree i think that's what the argument we've made is that if he honestly saw arthur johnson if you read back the statement they literally ended that interview with mr taylor saying oh yeah and my boy already confessed to shooting the guy who killed dead girl no questions after that like where did this conversation happen dance every least philly homicide case i have it's trial by affidavit you get a statement from somebody based on it they want to leave homicide then you get the trial they don't testify then you get the detective to come up but but his his testimony at trial wasn't that he was coerced into the statement it's that it never happened never happened he didn't even charge hardly bizarre given the officer's testimony that you know he was there and it did happen he testified that this didn't happen i never talked to i haven't seen mr johnson confession to a law enforcement bond you bitterly have my reading of the cases that mon gave some sort of statement they memorialized that he signed it but we have here is of literally a two page statement jury deliberations i believe all the cases i said it were from other circuits so that's still probably an open question for this circuit but i think it has a lot of weight they were obviously conflict about something the to drag out eight days from my  the rest of the questions and focus really on what to do with the statement and the the culpability guilt or innocence of mr johnson but i believe my time's up and i'm just really pushing didn't they tell us on this record that it was it was their concern about johnson and how to consider and weigh the statements of right i think that in this case we do have a fairly unusual circumstance and that ordinarily jury deliberations are blackbox we have no idea whatsoever what they're considering here we know that they were asking the court expressly for guidance on whether they should block rights statement from their considerations altogether and the court told them equivocal yes you must block that from your considerations you cannot consider that as evidence against johnson so we know look at jury asked this question and we know that the question was answered i believe all of the case and closed and given the absence of any other evidence we are bound to presume that the jury followed the court's instructions that are not what burton says bruton says there are certain situations where we it's expecting too much of the jury yet on a certain way and here the thing is that question says she was they knew that johnson was the other guy once they know johnson is the other guy in here we know that right statement says that there were two other people besides him in the car we have albus arc or we have her own right and we have a rd individual in the car my interpretation of what i would argue to this court is that when the prosecutor says you don't have to turn off your common sense what she meant by that was you don't have to assume that there was some other rd completely unrelated random individual in this car if become of some conclusion leads you to believe that most likely got rd person given all the other evidence in this case if you can connect those dots you don't have to turn that off altogether and say that there was some talk that maybe what she meant but the jury conveyed to the to the trial judge what they understood which was there was a conflict between that instruction and and  their understanding of the significance of right statement when the jury itself has communicated that and that the instruction to set that aside would require them to defy common sense don't we know with some certainty that this had a substantial injuries fact on the jury's verdict here and i don't think it goes nearly so far as to mandate the conclusion that it caused a substantial and injurious effect we do know that the jury had a question about that we answered i would argue that that meant that the jury said ok so we can't consider this let's put that aside and look at all the other evident in isolation but bruton says despite the concededly clear instructions to the jury to disregard the inadmissible evidence in the context of a joint trial we can i think cept limiting instructions as an adequate substitute for the british petitioners constitutional right of cross examination and pretty much says we can't expect them to do it so they had that confession the contrition corroborate d taylor statement about the motive action that confession you have no no really no motive here taylor saying this but could have been just speculation but then you have his confession talking about it you have  s testimony which i can't ask him any questions about you know who else was there and he did he tell people the next day he said he did they did they produce him the look to me like the scene of the crime was just not even detailed in his in his questioning at all because you got the firehouse guy say well there's a skinny guy and then there's a van and deon says he walked up he walked up i thought he was going to walk past me and he takes out a gun and shoot shooting because that was the evidence that he was primarily there to provide and he was very clear about that at the time his brother were out there selling drugs candidly and so i don't think it is altogether surprising that he wasn't totally scanning the area expecting johnson because again the history of this case was that johnson parker and some other individuals have had a longstanding animosity towards the beyond of his brother donny based on the prior shooting of darnell shot so that's not the evidence danny was asked i mean there was ask you never had any problems you and your brother with the defendant over in the neighborhood did you know or any business did you know so even though you were in you did a competition for this drug business no kinds of brushed past interactions french windows detention highlights didn't that evidence of motive ah so substantially come in through right statements i think that it comes in through those two sources yes it largely through the impermissible right statement that the jury heard anything about motive i think about as one of the sources through which they heard about but most of also comes into detective it comes through other witnesses as well your honor it's what other without having created the statement of right while right statement can be taken as evidence against quite so if they are taking great statement as evidence against right then we have a very clear picture of who saw johnson although johnson was reduction the statement and parker he drove them to this area knowing that they were going to talk to dani then he hears gunshots obvious parker comes running back along a different street i would note the direction that johnson went which i think it's part of why deion may not have seen him i think he ran in two different directions after the shooting but he hears the gun shop worker comes running back says they shot the boy and they drive away together so based on those facts it's clear that wright was not a gunman right may or may not have had a clear understanding of what they were going there to do but certainly given everything that he knew at the time because he was very clearly aware of the history of animosity here and i believe he also testified that he saw the gun sorry johns was getting into his car so i think all of that gets you to rd degree but  alternately in something of an evolving statement does does relate that he knew what they were going there to do right because as it recounted in the officer's testimony going through his statement he initially said only that that johnson others said they were going to to speak with johnny and and he is later amendments to see statements said what they really said was that they were going to shoot him what what significance should that have that there was this involving nature to the statement and yet no ability to cross examine about that evolution you know what i believe  complaining things taylor's the one does about his statement clients and i apologize and both both the original and amendment came in through the officer testimony yes how should we not have grave down here a supreme court said we concluded that the uncertain judge should treat the error not as if it were harmless but as if it affected the verdict if we have grain grave doubt we mean that in the judge's mind and i know that your honour's asked previously whether the van arsdale factors should be considered although this is not precisely in my mind i do believe that that framework does offer valuable guidance because there is no separate task to the best of my knowledge and i believe that if you run through those factors it becomes clear that rights statement was cumulative corroborating but not uniquely or independently incriminating as to any specific element of the crime but with me corroborative in it in a bad way as we've already talked about the the motive aspect the motive is important but one it was not unique to the statement and two it doesn't actually go to the crime itself history of animosity is relevant but it's not dispositive as to whether or not johnson pulled the trigger which all comes in three d on skip work but through deon absolutely no motive came forth at all but motivation to acquire the element we don't i mean he could have he could have just seen it happen and not have known anything at all about what happened he may not have even if it wasn't his brother even if he had been a stranger on the scene and he had seen this happen it would still establish every element of st degree murder motive may not be important but you wonder why gratuitously johnson would take out a gun and and shoot dani well certainly yes you might with other evidence and here as to deion statement don't we have to him originally telling the officer on the scene that he hadn't seen anything and secondly failing to report that there was a nd shooter yes your hon conviction here i would argue not under the particular circumstances of this case beyond was very candid about saying that he was hoping to kill johnson himself he wanted to find him on the street and kill himself he only came forward to police once johnson had been taken into custody on unrelated matter and it was no longer feasible for him to kill him on the ground was inconsistent with his testimony at the preliminary hearing where he said he didn't have the guts he had he had to you know figure out what to do and who he was afraid that that concept of oh i was going to kill myself the st time you mentioned that was a trial i don't think those two things were usually incompatible one because they want to get work with someone who has lived in these neighborhoods you don't think that if he originally he thought i'm going to get i'm going to get in myself and he wouldn't said that at the preliminary hearing that that's why if he if that was the reason he didn't come forward i believe that both of those reasons were true only because he says you know in the culture where i come from so you just get stitches you don't cooperate with the police and i believe that he back for himself and his family and friends on the street and he was in fact hoping to kill johnson if you're going to have both of these reasons in your heart at the same time one of them is much more sympathetic than the other and you might read with one that says i was afraid i was worried because this is true and not i was hoping to murder him myself which is also true but you also is inconsistent in whether he told anybody originally said he didn't tell anybody and then a trial he says he told his cousins i believe he also said he coincidence that in washington adams said in vazquez in concluding that there was not harmlessness that there was actual prejudice and we were playing back and not at the difference that is true and this is a case in which branch is the appropriate standard to use however in all of those cases i would note that the only evidence provided in those cases was either or i mean and or the defendant's own confession which in most cases was under agree with that is that is are they interchangeable and how we formulate the test your honor i candidly could not speak to that because i was not entirely able to follow that argument myself strickland seems to me very different and that it is   say that the correct standard is even more favorable to you because we've sat in washington but if we have great doubt about whether the error had substantial injurious effect or influence in determining the verdict we must conclude that the error was not harmless yeah i agree both of them when you focus on the great doubt got that favorable but i believe strickland is even more favorable because in this case you're literally looking for one j if you think about it conceptualized try to visualize the d a s case if any properly redacted statement if they jointly try tyrell right in your pajamas and how does that narrative go you have if you introduce that statement stricklin purposes if you're for the strokes who might be one if it's really probable without this statement you can look at it that way but even in both standards i believe he's established statement and that's what happened here to right statement gave the jury the ability to say ok we know it's a problem we know the other guys are for johnson we know dion has