morning have this been made please the court him falling on behalf of petitioner pennington i'm going to go directly to the heart of the matter which is the question of prejudiced does deliberations of the jury court i'm sure is from ill you're with questions of whether a constitutional lawyer is harmful or harmless and there is a certain amount of subjectivity that are of your brains to the sort of question i have and what i want to do today is identify some objective characteristics which demonstrate the prejudice in this case first the jury sent out a note asking for the kettle some testimony to be read now it seems to me that when you're talking about the question of whether certain testimony has an importance or of fact in the jury deliberations the fact that the jury specifically asked during the deliberations to really reading of a portion of that testimony is in and is a very important characteristic the show's influence and a fact on the jury deliberations secondly the jury deliberated in this case for three full days and part of another traditionally when you're looking at a question of jerry you're looking at whether it's a close case this is a case where the trial took six days the jury deliberated for three days and part of another sending out seven notes during their deliberations all right so when the worst part is that occurred during the interaction with kary mullis all those in in each of those four felonies the victim is gary knell now gary miller testified all right so the question is i can see that if gary knell of testimony was reliable that when mr pennington arrived at the scene he had a firearm that he pointed to carry mail now it's interesting that the jury rejected that testimony in refusing to find the announcement provisions on the robbery and on the false imprisonment charges in other words they rejected the personal use requirement of the firearm it has meant provisions well what i'd like to get to was the question of whether mel's testimony can be relied upon mallett for goalies testimony does not support the charges against now except in so far and as for goalie his style was duct taped in a trailer nearby jury to believe them and if there's evidence there and maybe the jury believe that liar and i i agree that it's up to the jury but the standard is not whether there's evidence to support the conviction in the record the standard is whether the so we have a situation where we've got a note from the jury regarding the unconstitutional evidence we've got three and a half days of deliberations after six day trial and we've got a prosecutor disavowing the testimony of gary mello which essentially is the only thing that can be relied upon with regard to the fourth valerie's in any direct sense it seems to me we have are for air and whatever time i have for about there to set the guy straight and to take his stuff and to get again ok he admitted that during testimony the jury can look this whole picture and say it doesn't make sense but not to commit a robbery he never he never admitted that he went there to commit a robbery to get a gun because he was afraid that mr mello hurt himself or someone else at the jury can rationally find under these circumstances that that is what he went there to do you know the fact that he doesn't in doesn't it minute expressly doesn't mean the jury can't find it really credible the prosecutor whether the prosecutor conceded that or not the jury could still go in there and based upon his own determination watching nala testify and watching everybody else has been might make its own and all of this merchandise to these people you know and be handcuffed to something why would why would a rational person give us a point he wasn't rational he was on drugs that was part of the evidence in the case but the fact is that whether he was john drugs or not he was still he was still in prison and duct tape and hand and tied up and all of this stuff including his wallet taken and his weaponry regardless of who this guy was he's not going to give the stuff up willingly you know on and i think the jury looked at these witnesses they looked at all the evidence and that's the conclusion they came to but i just discrepant the discrepancies in his testimony regarding the far arms and where they were found and how many there were that based upon all of the evidence and they looked at it and they determined that the deficient was guilty of these crimes and the reference to these references during health and test testimony were just incredibly two points first i think it's important to remember that coach well the code of canon was the lead player here so the fact that the jury determined the criminal activity occurred doesn't necessarily mean that they were ready to get the pennington of all these other charges because the jury did distinguish between controls involvement and pennington's involvement in by anybody's admission pennington was just sort of along for the ride and was not the lead actor in the confrontation between  mal the second thing that they came up during the response argument that i want to address is the question of the consideration of pennington's testimony with regard to the prejudice analysis and i submit pennington the defendant did testify my client did testify and it's my position that under favors connecticut and other cases that in analyzing the harmfulness of an error involving evidence submitted during the prosecution's case you i believe a miranda violation where the defendant then testified and made admissions that were similar to the admissions he made in the prosecution in the statement that it's yes i don't think the defendant ha