prosecutor in closing argument specifically stated that it was the co defendants confession together with the double hearsay of the witness that who also reported on the co defendant their theory was that he drove without knowing that someone else was going to fire the shot so regardless of whether clumsy or codefendant there montaigne's was the actual shooter the defense the defense was lack of intent which mr milan had told the you cannot believe mr moron's precious station that he didn't know there was going to be a shooting on it and was surprised by this because the clumsy character that mr malone also had mentioned in his statement has been fabricated and all of the evidence of primarily that council should have obtained a severance because it was impossible to prevent this kind of a brutal problem given the number of times that mr monti's had referred to my client so we analyzed prejudice by saying what would have been admissible in a all under lilly and also under crawford now so the only evidence because no eyewitnesses identified the car the driver or the shooter there were no bullets found there was no gun there was no physical evidence no eyewitness evidence evidence beyond the driving of the car because we no longer have that brick ation which would undermine his credibility we no longer have the facts that mr molong shared mr of your much anger and went out to cruise for rival gang member in anger because that evidence all came from the mouth of mr of your montes not from this morning its own statement had that been the only evidence against him could not legally have supported a conviction for anything other than  reasonable probability of a different outcome i want to emphasize that this prejudice finding is also held in my view when we look at the jury instructions as a whole the reason pointed out that the jury was given a very brief standard instruction not improbable and there was lots of evidence against it well i think that that evidence is so much closer absent the fabrication evidence that it can still be a prejudiced finding both sides might be three so there was quite a bit of room in the evidence for the jury to find either way mr i'm a long lawyer had a demonstration done with the car which showed that it was awkward but possible for someone to lean out the back but again mr moron's defense it did not turn on the identity of the shooter one way or another his defense turns on his own lack of intent which ultimately is independent of who is behind the wheel of the car again in reviewing closing arguments that it was in fact both the defense lawyers challenge the accuracy of the officers retelling of the confessions these confessions were not recorded the contemporaneous notes of them were sketchy at times and omitted certain facts mishaps on behalf of behalf of mr long directly challenge the notion that her client had stated that the shooting supported by the expert testimony of detective guy and as to gang activity who said it is true that gang members often will not use a car that can be linked to any of them in committing a shooting they went out to look for the gang members who just shot up their car and they shot them back that likely that they really would have done that because they were because they were grabbing  point judge reinhart that i don't think the identity of the shooter is dispositive if the question was whether this was quite a bit on the credibility of mr monk's denial of knowledge of intent of anyone who he was driving to shoot thank you it please court lloyd carter for the deputy attorney general for appealing well i agree with counsel and with the court it really doesn't matter so far your position is concerned who fired the shots the real the group we believe the plies in this case and it's unfortunate that we don't have a reason state court opinion we believe that this court in august in the case of brown tear discussed is when you have no reason to lower court decision what standard should apply and you said the objective lee and reasonable test which we agree with the court you also deserves a great deal of deference whatever this court's words you should use less difference i know i'm trying to understand and i find i find it very odd that if they write something that's take this instance if they had written for example that the reason that we don't think there was any because there was absolutely no evidence that there was a third person in a car and that's just wrong because that was some evidence right and then we can i guess we can say that's fine reasonable record to scene but we're confident that the state court rules correctly that the district court ruled correctly and then it's not objective leon reasonable for a jury to find even if we exclude what do you do about the credibility 's a liar then are they going to believe his story that he was totally surprised by the shooting once you know that the witness is not credible credibility did not just come from the damaging statements of mr vera mountain it came from the testimony of the detectives that it was virtually impossible for a shooter in the backseat and we can suspend for a moment whether it's snowman or clumsy as the shooter or whoever the shooter was mr wong contended that the shooter was in the back seat now we had a testimony from from the witnesses to the conflicts you've got gang members to testify and you've got mr that who i think his testimony alone provides the substantiation for the prosecution claimed that mr morgan store simply suddenly developed amnesia at the trial doesn't remember telling the cops any of his various stories but the jury is certainly entitled to think that both bath and his fellow gang member mr molong are lying about the inherently credible story that they go to commit a shooting and to commit it if they had committed it minutes later i think things would still be guilty they went to that location  just said they went to the scene to recognize her service and that he is surprised about clumsy i think it's also inherently incredible to presume that they went looking for this gang that had just shot at them and went on armed i think the jury you have to infer intent from circumstantially there was no direct evidence he didn't announce we're going to go shoot these people in his hour but a jury can reasonably announce the country standard and i think we have to presume that the state court followed federal law correctly and even should this court disagree with the factual scenario i think you have to show deference to the fact that the  correctness that they follow federal law you he said that they had plans to do a drive by shooting but that one of the subjects had jumped the gun and proceeded to shoot before the direction time i believe that answer your question your honor when it comes to the reasonableness of the state courts finding of no prejudice i think it's important that we keep in mind the u s to clean course repeated to discussions you know a lot of cases beginning with leave us illinois which is cited in the briefs that just because the defendant himself confesses and most of the facts are the because the jury can get confused about what time the intent had to be held and what that means and in this case frankly i think the defense lawyer tried to get around that problem a little bit by simply by questioning always maintained that he went out in his car to help look for people who might know something about the earlier shooting but without any attempt or anyone to get hurt and that's enough for accessory conviction and nothing more