titian the petition should have been granted because allowing evidence of uncharged misconduct under the guise of gang expert bases evidence violated mr jackson's right to confrontation and to due process couldn't your question about the confrontational argument yes the trial judge instructed the jury that out of court statements on which the expert based his opinion were not to be taken for the truth of the matter but rather only as basis for the expert's opinion can they possibly be testimonial hearsay if the jury is told not to consider them for the truth of the matter i think quite apart from whether they're instructed or not a statement can be characterized as hearsay or not quite absent quite apart from other juries instructed isn't isn't the definition of testimonial hearsay an out of court statement introduced for the truth of the matter has to be testimonial obviously but focus on introduced for isn't isn't hearsay only hearsay if it produced w truth of the matter correct your honor and i suppose you can change the definition or or at least instruct the jury on how to use this particular evidence are going to be if i was you process they may be entirely on it may have tainted the trial for them have actually difficulty seeing why how it can be hearsay if the if the jury is told not don't don't consider this to work but whether they're true just consider this to see where the expert opinion is ri worthy of your consideration i think the difficulty is actually it's discussed at length in williams in the supreme court case that the justice is struggle with well is this offer for the truth or isn't forensic scientist that these swabs came from a take a particular person from a particular source but but the justice is really struggled if even if we instruct the jury don't consider this for the true that is  don't use it for a hearsay purpose instead just use it to assess the credibility or a liability of the expert i think it's too big of a task for any person to take that and say all right separate due process or i do in the court of appeal says well it's harmless error or if it is there or it's harmless i'm interested in the gang and hence we're not not just for conviction  included in the police reports that the gang expert relied upon because those the clearance were not trial did not testify were not confronted by mr jackson's counsel that it tainted not we're not looking at this through the lens of the correct correct so then we have to look at the supreme court's teaching in t which says we can't look at it we can overturn  conviction based on supreme court cases that were decided after that that became final right which is some time after i wrote i don't have exactly here but i think williams was was after that so we can't look at from those cases but applies it to a situation where our we have an expert but not the not the one who who produced this report which says certain things but we have another expert who then relays up to the b necessarily a new rule that does not apply in a case that's already final prior to it being handed down i think williams can still be applied and the helpful analysis in williams is that even the justice use the basis evidence for the truth of the matter asserted but even then five justices as well just five justices said wait a minute even even this fact finder who is a trained jurist is going to have difficulty parsing out well if i take the statement not for its truth but then i have to conclude whether or not i can rely upon this expert whether the expert is credible the expert is thorough whether the analysis that that expert uses is something upon which the fact finder can have faith even the williams court recognizes that is a tall task and i think that that expert testified he form the union that jackson was a soldier for the valley high crips erikson testified in the first trial and the transcri drive home the fact of what jackson i think the i think what the critical this is distinction between being a member of the valley high gang and being a point well the that is that is that your point i think that i thought your argument was that the this was harmful because it not only indicated he was a member or a soldier which was not in dispute but that the crime was committed in furtherance of a gang activity that the expert testified to that to did you know correct she did and that's that was that was the something that was not admitted correct that was something that your this evidence was admitted in error it was harmless or and with respect to whether or not mr jackson was a member of a gang as judge judge based question indicated i don't don't see how it could be harmful since he admitted that but in order to get the gang enhanced when you had to show something more which is that this crime was committed i'm paraphrasing but in furtherance of the gangs illegal admit the to allow the hearsay to come into some buttress her testimony on that point how can that be harmless that certainly would it wasn't there was overwhelming evidence of field perhaps overwhelming evidence for gang membership but was the evidence of that this was in furtherance of gang activities so strong that it mission of this other stuff is harmless or well it was and that's what the gang expert has to do the gang expert has to take facts her experience her no i'm not i'm not arguing against hurt eventual conclusion my question is these these five out of court statements were admitted to be more admitted as part of her expert testimony and he makes the due process argument he says they shouldn't  come in because they deprive my client of a fair trial and the court of appeal says well maybe but if so it was harmless error because everybody knew it was a gang member but i'm not sure everybody knew that he this crime was committed in furtherance of the gangs or in  that focus on that i understand her testimony can come in it's a question of these five statements which the court of appeal sort of says we don't have to get to because it's harmless error yes your honor and i'm going to answer your question in one moment i would just like to further  harmless was unreasonable tell me tell me why the evidence was so overwhelming in this case that this was in furtherance of gang activities that that admitting these five hearsay statements made no difference sure your and then started shooting that's overwhelming evidence that this was done this crime the attempted murders was done in furtherance of the benefit in the association of the criminal gang tell me tell me what you what part of this evidence came from your expert and what part came from p witnesses but the percipient witness of what happened came from katie warming thing right scribed what what happened at the scene but the fact that there was a gang war and that the these other folks were what came from percipient witnesses which the gang expert used to base her opinion so so asuncion let's assume for a second and i'm not suggesting this is the case that the gang experts testimony was not admissible was stricken is is the evidence that this was in furtherance of gang activity overwhelming in the absence of that just one i think from our look at the record it comes mostly from that testimony just like it does come mostly from the testimony but also from the words that were spoken and i think the average jury with out again expert without when you brown testifying would know there's a gang challenge blood versus crips i think that's within everyone's parlance let me go back to the state court opinion sites california cases citing and the supreme court case and then says even if we were persuaded that there was a violation the year his heartless why are we looking at the determination that it wasn't due process violation for purposes of the well just for the simple this is a point that wasn't brought in federal court it wasn't brought in his petition i understand this court issue that was difficult feel belittled and we can discuss that because there's overwhelming evidence of mr jackson's guilt in this case and there's overwhelming evidence outside of the four i think know for instance is a prior conduct to show that this was gets through the harmless error argument for at first abrahams and is does a stat was that needs to be substantial and injuries a factor influence in determining the jury's verdict and i'll go back to the fact that the jury was instructed three times testifying about some prior instances there are these statements are may be considered by you only for the limited purposes of showing the information from which again expert form her opinion this test was not to be considered for you but evidence of the truth of the facts disclosed by the state and of course the jury was instructed at the end of the trial and that was that the c c of pages are eleven twenty four so the juries are presumed to follow the course instructions and this goes into the crawford area but also goes into harmless error for both cases or for both issues that the jury was instructed do not consist evidence is evidence is not coming in for the truth of the matter asserted and that's why it's not a violation of crawford