on three instances and three separate track or errors but today i want to discuss how two of the instances of the prosecutor's misconduct and to the trial court's errors are related which clarifies why mr crane didn't receive a fair trial and why the state didn't meet its burden in proving congealed city on a reasonable doubt and if you forgive me i'm a little bit under the weather some going to try to get close to the microphone here so as to the prosecutor's misconduct in the st instance the prosecutor used mr crane's post arrest silence to impeach is trial testimony this was a toy a violation because it violated his rights of post arrest silence the rationale behind the door violation is that silences ambiguous and may be the result of the prosecutor specifically questioned officer sleep or heard she asked if he spoke to mr crane and then has three questions which were clearly meant to elicit that mr crane had been silent she asked at any point did you speak to mr crane during this incident cannabis that was found in his own vehicle no ma'am so this was a clear elicitation that mr crane had been silent the evidence also show that officer chavez testified that the defendant was arrested on the scene he was handcuffed placed in the back of the squad car and then transported to the police station now officer chavez testified that mr crane made somewhat conflicting statements about how he knew mr weston but also that he didn't mention anything regarding the cannabis and then at the police station he didn't add anything about that either you haven't it's also show that mr weston had been given random warnings and didn't make a statement about the campus what follows the prosecutor's argument to the jury that mr crane was not credible because he testified in history trial because he didn't make any statements about the cannabis on that day she argued for instances she st argued to the jury that when the police asked the two men if they knew anything about the drugs they said nope don't know anything about it no statement nothing about the odor on that day she further argument that the men were questioned and stated to the jury now ask yourself if you were at a hotel and the police officer happened to find four packages of cannabis in the trunk of the car what would your reaction be would it be nothing or why would the reaction be nothing she then specifically asserted i heard mr crane said he there and explained to you and to me that he doesn't know anything about this he never saw that black bag he never knew anything about it he didn't know what happened which again are all the things he never said that day and then rebuttal she repeated the argument that they didn't say anything to the police when they were questioned and so it could not be clear that the prosecutor was arguing that mr crane's testimony at trial was incredible because he did not tell the police what he told the jury a trial and even if this court finds that the prosecutor wasn't clear on whether the statements referred to  seemed on the scene and he said he seemed intoxicated she asked why she said he seemed nervous she then asked a leading question do you sometimes encounter people who are nervous specifically because they're talking to the police and he says yes she then asks did the defendant act like the normal innocent member of the public and officers responded a little different than a normal member of the public now the use of the words normal and innocent by the prosecutor with improper implications to the jury crane was acting guilty based on his demeanor so officer chavez could testify that mr crane seemed nervous or seems intoxicated he couldn't interpret that for the jury even the state's argument in its response indicates that guilt was presumed by the prosecutor's question they argued quote it was completely permissible for chavez to testify to defendants behavior versus a civilian who was not engaging in illegal activity that question  it was the prosecutor who was at the heart of this issue because she's the one who introduced it now she asked officer chavez to identify mr crane in court and he did she then asked him to identify mr crane from his booking photo because officer travis took it at that point defense counsel objected and this was in error because there was no need for it the defendant's identity wasn't at issue but the court allowed it over defense objection the judge clearly made incorrect comments to the jury st and told the jury that it was a booking photo so if it wasn't clear before it was definitely clear now and then he incorrectly informed the jury that it was just like the neutral charging instrument of course it's not it's evidence that shows the defendant's appearance at the time  the prosecutor's purpose was clear she asked the jury to pass it around so that they could see him with the defendant look like when he was arrested shortly after that is when she asked officer child as whether he acted like a normal innocent member of the public and so the apparent reason for the photo is to prejudice mr crane from his appearance at the time of his arrest it was improper and the courts should have allowed it and the other trial court error that is related to the prosecutor's contact is the last issue that he raised that the trial court did not exercise discretion in refusing to let the jury see the rental agreement that had been admitted into evidence because the judge erroneous believed that it had been admitted now the price the cuter someone who presented it was her evidence and she argued to the court when they were reviewing the evidence that should go back into deliberations that it shouldn't go back because it was irrelevant and it was at that point that the judge said well i'm not sure was it was it even admitted i don't think it was admitted and the prosecutor said well there you go then well of course it had been admitted the record confirms that and she perhaps didn't correct him because the agreement ended up supporting the defense theory of the case not only did it show that randy weston alone had rented the car w cannabis was found but it was misread by the prosecutor because during cross examination of weston the care asked why ransom would choose to rent a car to go back inside a fly when it costs ninety two dollars a day and he corrected her and said no it's actually closer to fifteen dollars a day which is why i decided to rent it if you look at the agreement it's actually closer to thirteen dollars a day nonetheless the prosecutor still argue to the jury that it didn't make sense that west said it was more cost effective to drive home in part because of cost and so in this context the prosecutor didn't correct the judge to ultimately did not get proper consideration and he didn't let the jury evidence and it was prejudicial because it actually bolstered the defense case and so these two instances of the prosecutor says conduct are related because it's indicative of her overall approach to the case which was to ensure crane's conviction no matter the circumstantial case i think it's also worth noting that the prosecutor tried to keep out mr weston's testimony that was discussed in a footnote in the briefing but mr weston of course testified that he alone took responsibility for the cannabis and he definitively deny that mr crane had anything to do with the offense the prosecutors areas were overt and they concerned fundamental principles of law it's fundamental that the state shouldn't argue that a defendant silence means he's guilty or ask a witness if you think the defendant is innocent and there's just a couple of comments on the no directly to the last point of the defendant's mug shot it was referred to as a booking photo maybe not specifically a mug shot and it was referred to by the trial court as a booking photo which is why we chose to raise it as a trial court error because if there was any question about it it was certainly cleared up by the trial court's comments and those comments were error he said the judge said that the photo was not evidence that it absolutely was evidence it was introduced that way it was admitted that way and it was shown to the jury that way so equating booking photo with a charging instrument is just wrong as a matter of law as to the idea that it case by the way the prosecutor used it she misread the agreement she fired it sad for whatever reason that it was ninety two dollars a day and it was actually closer to thirteen and so in that context defense count sol it just because he initially objected to change this as as the trial goes on but even so if this court finds that it is invited error it is absolutely in fact is to not informing the judge st that no this was actually admitted because that's the proper thing to do but then also to not want to let the jury see evidence of actually corroborate your case and strengthens both the defendant's and mr weston's account the normal innocent member of the public issue just in response the idea that it was meant to only refer to the fact that the defendant was acting acting intoxicated again that testimony was already elicited as said he seemed intoxicated that's proper but it doesn't mean that he's not credible and it certainly doesn't mean he's guilty and it's undeniable that the word innocent carries a lot of weight with the trier of fact in this case to a jury and to have the