direct testimony most about eighty percent of the direct testimony of his ex girlfriend who had accused him of assaulting her and the second is whether his absence from that part of the trial was prejudicial the first one is a pinpoint what what what the defendant could have contributed but here we know that it had a profound effect on the testimony that the accuser gave at the opening statement for which luck was not present the da tells the jury that he has no idea what i clicked testimony will be that and her preliminary hearing she had claimed that she had no memory she didn't remember what happened and he  know had an expectation that that would might be her testimony again at trial but then she comes up to testify and the star last month not there for and she not only tells the story clear case of where you can pin point that there were some prejudice except that he testified that he testified but he testified that she was in a delirious rage and herself in the head with a car distributor cap right correct and then he poured ice tea on her head because it was bleeding from self inflicted wounds and he was trying to clean her up correct he slapped her to get her out of her rage she fell and scraped tourney he threw a coffee mug and broke it after she left the apartment what if the jury just didn't believe him  well the issue is a dismissed kind of a credibility contest he should he said she said they were the only two people that were present right that there were witnesses who responded right afterwards there was a police officer and there was a neighbor in the apartment or saw her come screaming running out of the re there were but the kesse two responses to that one is that we're comparing what she presented to the jury who had to determine credibility versus what she might have mr her life been sitting there in the courtroom and she had and there was a face to face confrontation which is what we expect out of our criminal trials but the other is that the test for prejudice for harmless error is well could they have convicted him could could they have convicted him had she provided the same testimony that she gave at the preliminary hearing that's not the test the test is we look at what what happened and did that contribute  bet is it beyond a reasonable doubt that the conviction would have resulted anyway and that case contributed the verdict it as a piece is is too amorphous to evaluate the question becomes would the verdict of been the same and and what i hear you're saying with regard to how her testimony varied and the jury may have gotten a different impression with regard to credibility but in the end your client told a story and the harder question to me seems to be the one who judge kristen posed which is what would have caused the jury to believe his version they don't believe his version it's hard to see how he doesn't get convicted because  this is all there is things that she testified about too that had never been said before to it to the neighbors to the police at the pluming your hearing that she said she testified to because she wasn't there wh tale was portrayed by a woman who with said she was in told this tale because mr hard off wasn't there mr hart not have a right to know because what she said she said it was easier to testify because he it wasn't there but you're missing something the jury was apprised of the fact that she hadn't testified before and hadn't given a statement about that so they could easily but accept the premise that she felt freer to testify and the real question is not that it is whether or not the state court applied chapman in an objective leak reasonable manner and if in the end they did it for question is why wouldn't the jury just look at this story including the police responding and that she ran hysterical you know screaming to the apartment of neighbors and say this is just a classic case of domestic violence of course she didn't want to testify that we see this all the time but that's not what chapter that's not what the chapman test says and i and i'm i have a whole section in my brief with all of the different united states supreme court and explanations of how the chaplain chapman error test is applied and it's not simply so what would they have convicted him anyway the question is did his absence contributed is added what happened because of his absence from the trial affect the jury's verdict and how can you say that it didn't f may have affected the jury's verdict because she testified and with with a lot more detail and since she was subject to impeachment and the jury had a reason to really doubt her that they may not have had otherwise right but british humor in it having a jury hear it and finding out that you testified differently and claim you're hearing is different than looking at this all occurred because of what the trial judge did about mr harland injuries and his in his ability to seek some medical treatment for his injuries and his when even testified we don't know what would have happened had he been there and she testified consistent with the preliminary hearing where he can't control all of that but i thought it testified at both proceedings consistently and not been believed she could have testified inconsistently bullied and that's not the test but we but but to talk but to say that well he wasn't prejudiced because he testified and they found might have found his story ridiculous is recent might have found what would what tells us that they wouldn't of found i mean that's is beyond a reasonable doubt i understand that standard we have to conclude beyond a reasonable doubt that they wouldn't have believed a story they would have convicted him and that's the question we've been trying to  after he refused to come out of a cell and then ask to be taken for a medical evaluation the plan being ordered to appear in trial and second even assuming this court finds that trial court's first determination was made an error the california court of appeal did not unreasonably find that absence prejudicial beyond a reasonable doubt now i understand petitioner or appellant has focused most of their time on prejudice i'm happy to do the same unless this court has any other questions about the first issue moving to the second issue assuming that th court does find error as the first point positioner cannot show that there is a substantial likelihood that his absence affect the jury's verdict now to address petitioners first point that upon excuse me upon petitioners absence absence and continued to minimize petitioners behavior even while petitioner was absent house specifically or honor the trial court the prosecutor offered up the instead of pulling out a power drill plugging it in turning it on and that explaining to brown to how people use power drills she was offered the opportunity to say isn't that a threatening act and she said no i would not characterize that as a threatening act that is a direct that directly undermines the idea that brown took every opportunity in this absence to embellish her testimony and make petitioner look as worse as possible additionally brown alyson that's not really the question though her testimony if you compare it to what happened before and what she acknowledged your testimony was at a minimum more vivid during the time that he wasn't there yesterday and i'd like to clarify of specific point out that this court has already addressed and discussed as to brown his reasoning for testifying differently at the preliminary hearing i should at the trial i want to clarify this and if i may be read from the to trial she says and i quote again this is a transcript so it might be difficult to make out but she says quote it made it a lot easier for me to talk about it and to say it's because i wasn't in back then and i still am like i said he said that if i ever put him in jail i better move out of the area because his home boys would come after me and i'm not i was living in the area back then still and that's why i was very scared she testified she had moved out of the area didn't she sees me around she testified that she had moved out of the area did absolutely yes your honor and in looking at the entirety of that statement brownness testimony there explains that the reason for her testifying differently for a trial in his absence is not true because petitioner was absent but because at the time the preliminary hearing took place she was still living in the area and under therefore under the threat of petitioners original statement that his home with her she her home his home boys would come after her at trial she is no longer living in that area and that is the reason why brown had testified differently at trial that she took the preliminary hearing so while there is some mention of petitioners absence in that explanation looking at the entirety of that statement as the court of appeal did it look it shows clearly that brown as emphasis and test money to differ is not because of his absence but because of the threat longer exists at the time of trial and as you say these are sometimes hard to parse but she does explicitly say the mr her love was not present in that chair you know what is what is she referring to my that your honor it's i believe at that point that is within the context of explaining that at the time the written petition or at the preliminary hearing was present and that threatened did exist given given the fact that she was still living in that area but given the entirety of the state in a trial it suggests the statement she was in the court room wasn't she not stand him and the point was he wasn't sitting right there counsel table that's why it was easy for her to testify isn't that what she meant no i don't believe that's the case your honor because specifically she does say it made it a lot easier for me to talk about it and to say it because i wasn't at the time then she goes on to explain that specific threat that existed at the preliminary hearing but no longer legs as such a trial she say i thought this was uncontested that she said it was easier to testify because he wasn't there for the first hour brown it would not have testified any differently had petitioner actually been there upon petitioner actually being there at trial petitioner back briana did not alter or cancer testimony she did she continued with her testimony both on direct cross and redirect and identify petitioner in court and in looking at the context of her statements as to explaining why she testified differently in looking at the context to explain what she did testify to both in his absence and in his presence it shows that there's nothing to suggest that is not likely that petitioners presence would have made any difference in her testimony at trial nevertheless petitioner's absence could not have made an impact because the weight of the evidence of his guilt as scored as suggested is overwhelming brownnose testimony is this is not a he said she said scenarios petitioner implies this brown is testimony was correctly corroborated by both the physical evidence both the photographic in photographs of her injuries showing laceration person who looks like petitioner running out of the apartment yelling and screaming she can't see me she can't have my house she can't have my stuff she can't have my life f her i'm going to kill her that directly corroborates partizan brown his testimony here now by contrast petitioner's account for this is that the her injuries are self inflicted and that absurd explanation aside his testimony is directly contradicted by that of the other witnesses for example what about the scenario suggested that he wouldn't have testified he wouldn't of felt the need to testify her testimony wasn't as strong as it turned out to be i'm sorry i may repeat the question well but the i thought i understood from petitioner's counsel that we have to figure out what would have happened and if we accept for a moment the promise that her testimony would have been more like the testimony she gave at the preliminary hearing then maybe he doesn't see the need to testimony or to offer this story which the jury did not believe with regard to her hitting yourself if that was the case you are the petitioner would have no opportunity to present he still would have had that print opportunity to present himself and presented to counsel and no that's not the question the question is maybe he wouldn't been motivated to do so if the if that if the jury had only heard at trial what she said at the preliminary hearing he may not have chosen to take the stand his own testimony was very damaging yes to the fact that he or she ran out of the apartment screaming he's going to kill me brianna petitioner runs out of the apartment yelling i'm going to kill her i still have the photographic evidence of her injuries which supports the details presented by the prosecution of the types of injuries that petitioner inflicted could never have known that a coffee mug was involved in that incident all the time so i thought it was honestly arms overhead put her arms picked up the hammer and hit her in the hand several times which lasted hours want to believe but he prevented her from hitting her blocking her that's what the officer would have testified office not present in that chair and it made it light easier for me to talk about it the thing about the home boys and scared of something we never heard before that something actually added in her testimony that she never told police before never told the neighbors the issue about what the test is for chapman on page thirty four thirty five my brief i quote about six united states supreme court cases that talk about that it's not simply enough to say would there have been other evidence would you take that out with the other evidence of insufficient you have to look at the big picture how did this contribute to this and in this case we have to look at the big picture of what happened in this trial we're talking about a trial that by the next day the verdicts were rendered mr hart last attorney had presented  very viable solution to the court give me a couple hours let me go down and find out what's happening with him medically and the judge said no we're not going to we're going to go forward and he misses thirty eight of the forty nine pages of direct testimony of the woman accused of assaulting him which