l use of a weapon by a felon after a jury trial he was convicted on both charges and sentenced to thirty years in prison that now the focus of his trial was basically on his alibi mr richardson about the his involvement or possible involvement in the armed robbery and during the prosecutor's questioning of detective watkins drives a almost identical parallel to this court's decision and people be sanchez where it was the same kind of elicitation of improper post arrest silence and then arguing during of such evidence is and isn't warranted and therefore should not be warranted in this case the state does indicate that there are exceptions to that eleanor hall those being if the defendant says you maybe he or she did make an exploratory statement to the police prior or if the post arrest statement is inconsistent with the testimony at trial here where mr richardson offered an alibi that was not inconsistent with his post arrest silence or with his indication that he was not involved in the in the robbery those two things are not are are not inconsistent and therefore it was  improper for such evidence to be admitted during trial now there was another similar violation also when the state was questioning detective walkmans this is dealing with the indication that that mr richards and you know all that here heard indicated that he did not want to speak anymore and even though the state didn't directly listen to this this testimony and even the state didn't mention it in the the state i say the state didn't mention it at all it could be that the state knew it was improper and therefore didn't didn't mention it again but the record is silent as to that but they they didn't mention that at all the only thing that the state close in this case we have eight in a white fish who are a victim who identifies the defendant but we have the defendant presents an alibi which is very different from a lot of alibi cases that we proceeds she said that noah listen to me and she saved the receipt not just for the random reason she saved the receipt as it was the only proof physical proof that she had that mr richardson was with her at a specific time that would make it incompatible with him to be able to commit the armed robbery we also well then then that kind of brings us to the the second issue  that that mr richard said she wasn't familiar with him she testified that there were these rules in place at the daycare that only authorized individuals can pick up pick up children and she brought in a tiny key henri a sign up shee after and therefore i think it came to call them a question you know his whole testimony i think he well it seems like the evidence presented at trial that the kid that that the defendant wasn't there and had these series of events but if you if you had if he if he wasn't telling the truth about what he was doing after the alleged robbery it was i guess possible that he wasn't telling the truth about what he was doing at  time of the robbery so i i think there may have been some relevance as to why it was allowed but it was in fact was very very damaging to the credibility of mr richardson's alibi testimony and mr richardson in response wanted to have his mother testify to as to a time card if they thought she wasn't the individual was really the only individual authorized individual who could have picked up the kids that she was that individual and the court essentially agreed that her testimony was wrong he agreed to allow her to testify he only prevented her from testifying because she was in the courtroom during the course of the trial and therefore violate the exclusion and while the exclusion order is pretty much in place to prevent witnesses from tailoring or changing their testimony with what what's been previously presented said that   the court hasn't used its discretion with respect to allowing a witness to testify if they violate the exclusion order that test being whether or not the information is that serial or whether or not the print from defending himself with respect to the the credibility issue now the state offers that you know this information could have been brought it if the state can punch or punch a hole and what he said at some point it kind of just does credits everything else he sat so i think that was kind of the goal of what the state was trying to  the children the day here if she was she was but again i'd argue that that wasn't meant to bolster the fact that he didn't pick up the kids but it was used to s that these policies that only authorized people can pick up the kids is that true but she came in with these documents that seemed kind of unchanged that was something that the jury could kind of hold on to that there are these policies and this is how it works error at the time of the interview with the day to walk ins and it was in jail on charges of obstructing an officer and there's no indication in the record that and have been arrested on charges that issue time the interview and even if he had it and it clearly chose to speak with watkins about this particular case in a trial watkins did not make any comment that if then it had remained silent post rest but he volunteered in the non responsive answer that at some point defendant asked to be i didn't rob nobody i make ten dollars an hour take me back to jail and watkins response was equivocal to defense counsel's question he said in the spirit yes so clearly a trial defense counsel as the officer watkins where the clean air argument than argue that that the evidence was close in the people dispute that in that the victim testified positively that the defendant had robbed him a he said he was a foot away from the head of the gun industry as he looked at the defendant because he wanted to know what the person looked like who was holding a gun to this yes he testified that his vision is twenty twenty it had it involved here there's some discussion that definit could not have done it because he was taking his mother or grandmother i guess it was to the red lobster this time in but people in their brief we pointed defendant could have done this crime given the timing and the distances involved we had the police officers somewhere around four forty he got a call the stitch dispatch to speak with the victim at the restaurant were to occur in the grandmother's or he picked me up somewhere between four thirty four forty it be about five minutes approximately travel time to get from point a to point b from what i've seen in the evidence so it's entirely possible that within the time frame defendant could have committed the crime and still doing everything that everybody said he did would have taken granted red lobster observer and so that the evidence is not closed in this case and so the people because it was y area because the crime was committed that seems to be a secondary issue except maybe just is the point of it was crime committed that's why officers were in the neighborhood looking for suspects that that's the only reason it seemed to have been brought out there's a whole lot of detail here for making that point that they followed people who were wearing the same kinds of things that were supposed to have been worn and somebody ran like he had a gun i mean all of that seems totally irrelevant to this case and it seems like i only know i don't know what would be piling on it is certainly did not indicate that defendant committed the crime i don't think there's any way one could say that that particular redness of the way is to be and the fact that there were other suspects who are similarly dressed would have indicated that defendant did that so i i don't disagree with your assessment that that particular testimony may not have been particularly strong for the people's case but i don't believe that that was the strongest evidence against we have the victim who positively do have a defiant defendant as the  that's the evidence that's most hedonist the other evidence is while it was brought out in i believe it was only brought out as i said for the purpose of showing why the offers were in defend his neighborhood at the time ok but he these other individuals happened to be in the area whether they had anything to do with this particular crime i don't know i don't know that that evidence could have convicted defendant because he was not listed he was one of the individuals in the s u v and there was no real evidence from that you know connecting defendant specifically to the crime so oh ok i'm i'm a little confused now i thought that the defendant was charged when was that yes that was after the crime had been committed there they were looking for suspects in the neighborhood after that yes evy in and of course they had a statement from the victim that he'd been wrong so the revoking in the neighborhood for any suspects ok at the front desk when someone signed the child out but ms even did not recall on that particular date who picked up the pieces children i mean on june twenty second so she may not have been the person at the desk on that particular day  did it because obviously she would not have been at the daycare to witness him picking up the children so she would not have had any direct knowledge of that had defended the person and course the initial saying that he wasn't like he should not have also have had a personal knowledge of miss eden's work schedule or whether others pick up the children from the daycare and if any claimed that he picked the children on june twenty second so she would not have any knowledge of of especially of miss eat schedule because she regularly has others pick up her children so she could not know that regular schedule her surgery potent testimony would not have been proper because she put not a testified about something that she did not have direct knowledge of and because it that denise had been work at the time of issue and could not have signed the initials d v on sanal she however after denise it been sworn in the prosecutor objected to resist because denise had been present throughout the entire to their own policies neither woman look east or denise would have been able to testify to that and what they would have needed to present if it had been available would be the da mentary evidence from the daycare proving that someone other than the three authorized individuals had been thinking of the fusions children but that was not present in the testimony would not prove it therefore if it was not prejudiced by the exclusion of the niece's testimony either  having because it was because that the and that statement wasn't itself damaging he denied involvement it may have been something that defense counsel wanted wanted to come  just quickly address what the two of you mentioned with respect to the s u v and the officer finding the defendant at his house the purpose of the of that of that testimony being brought out was that the state wanted to indicate that someone from that s u v rare and it officer chased him into the area where the defendant lives and then later on at six fifteen pm another officer saw the obstruction charge that that was the point of that but it still didn't indicate that the officer who saw it and then at six fifteen much later didn't indicate anything about what he was wearing or minutes now with respect to eaton's testimony as to state mention he didn't know anything about that day all she had the only information she had was tied to those two tho  five o'clock and every time that she wanted it and was never there that could have been  the refund it was i believe he was just going through what he and done that day because he indicated that he picked up his his grandmother took a red lobster picked up the kids and then when he got home and his sister indicate that on justice lutenist the third person on this panel he was not able to be here today but he will be listening to the tapes and will be fully advised of the