no we don't know any of this and also we don't know if these statements were made and hopes of leniency from the state and because nelson did not testify at trial there was no way for the court to assess the manner in here this this issue this error was not harmless at all because the way it was the hearing over used to bolster the state's weak evidence the state failed to work doing now counsel i asked you earlier about whether or not there was an objection based on the confrontation on the right to compensation indicated that it was only based on hearsay so if we were to find that you forfeited the right to go forward as far as only objecting based on hearsay you take the position that you would be entitled to  we're looking at the trial i wasn't quite clear on that your honor well first the objection was made on hearsay grounds and now it's being raised regarding the confrontation motion it could be reviewed and the evidence or in this issue and so it would be harmless error applied to the issue regarding the trial and point that it's coming in at trial right and vice versa if you see them saying it with regard to nelson's statement yes if they did not come in and you know i first would like to for your attention to council's work life group on the first page i'd like to respond to the accusation of grossly mischaracterizing the record  i stated defense counsel conceded that the testimony by the officer was reliable in the miscible and that the interests of justice would be served or indeed ultimately found that defendant which involved a murder  those are basically the last two prongs of section ten point six they weren't applicable at the hearing nobody disputed that there were sufficient safeguards of reliability on the statements and nobody disputed that the interests of justice would be served the only thing in dispute was whether defendant actually murdered mosley and whether that was intended to prevent testifying if you look at page two the next paragraph counsel's very first two sentences says what since counsel argued since counsel argued that the state did not prove that been killed mostly other men did so with the intent to hear mostly as absence as a witness defense counsel agreed however that if the state proved been killed mostly and did so with the requisite intent that mostly statements would be admissible this is basically rearranging the words that counsel stated with a gross mischaracterization of the record so i just want to point that out before i got  only makes sense this is a torture by wrongdoing proceeding there's clearly this dealing with the non available witness in this case by murder clearly there's going to be some out of work statements involved so stately that u s supreme court is correct in that and then if this court did find specifically that hearsay is inadmissible of these trials it would be the first court to do so definitive fails to cite failed time in cases that specifically hold melson of the issue of nelson's inadmissible hearsay evidence therefore it is forbidden and there was no air whatsoever so it can't raise the level plain or it doesn't raise the level of harmless they're looking at these specifics of this hearing without even getting into nelson state michelle haley and both witnesses for murder both specifically identified defendant as the murderer they also heard a phone conversation briefly for that offering defending its it's unclear who was on the phone with mostly but the intention was clear they were offering him money not to testify the next good day i guess depending within an hour of that phone call been in bust into the house bills mostly it's hard to imagine a more perfect scenario for her by wrongdoing than this in this case the only way it would be more solid is if  the defendant specifically stated out i'm shooting you so you don't testify against me tomorrow that's about the only way we can have more intense than in this case right now again we have to remember the preponderance of the evidence was the w this one is clear as the trial court noted almost beyond reasonable doubt i would say it is a reasonable doubt that doesn't matter it's at least on the evidence two eyewitnesses specifically identified defendant it doesn't get more open and shut up and that there were some inconsistency in their testimony regarding definitive small based tests to again we have to remember the scenario where these two observed if in that they were observing him busting into a house and shooting one of their loved ones and killing  so i think it's understandable if they do not get the exact details of the artwork of defendants face had to correct more importantly they notice that the shooter had a face tattoo this is a pretty small segment of the population of which defend was a member of and in that case it supports the reliability of their statements and of course the trial court is in the best position to evaluate michele and bally games testimony anyway and all the witnesses for that matter so the reason i mention just their testimony is because it doesn't have anything to do with nelson the intent and the identification of defendant of the murder was clear just from their testimony in this there's no argument that their testimony was any mis there was there was hearsay involved although it was involved the actual dead witness mostly so clearly pursuant to staveley that that evidence is admissible so it's well settled intent of course and almost every situation is proved by circumstantial evidence as people don't go around this verbal lead to claim their intent the world doesn't work that way is probably doubly true in criminal matters so this case we have a phone call within an hour of definitive murder offering a bribe to not testify within an hour to finish shot dead by the defendant who he was going to testify against the next day it's not hard to connect the dots here the state was was served this case on the on a silver platter the circumstantial evidence in fact the only recent one was to make there's no other suggestion in the record at all was that the defendant killed mostly to prevent him from testifying against him the next because intent should be presumed because it's an absolute certainty that that witness is going to be on bail they get murdered there's no more there's no more unavailable than no longer living so the state police logic is solid in that department in this court should presume intent although they don't have to in this case because intent was clear so that is i mention all that without mentioning the nelson statement that affects my suppressed by two because or by wrongdoing hearings it only makes sense we're dealing with an unavailable witness this is not the case of people versus faults that defendant cited that involve motions press here it does not have the special circumstances statements were admissible especially when you consider they were forfeited by not being raised in a post trial motion anyway that's what i want to ask counsel was it your position that the objection based on the right to confrontation that that was not right and failed to in the post trial motion so i mean it's well settled that if it's not preserved in a post or a motion for that but it's a constitutional issue so the rule is a little bit different true i mean harmless there applies to constitutional issues and so you say it should be a harmless error analysis if it is error which clearly it isn't  ant to state leave this this hearsay evidence was admissible if this court finds otherwise it would be the first court to do so  the the ultimate finding at the fork or by wrongdoing hearing if we want to assume further correctness say we want to assume that it was eric to admit nelson's statements clearly it would be harmless because of michelle kane and haley james testimony that clearly showed defend its intent but will assume that without it was there to admit nelson statements and it was fair to rely on those statements to ultimately grant the safe motion  they even then defendant wasn't prejudice the trial would have ended the same way beyond a reasonable doubt the evidence against if in a trial was overwhelming tommy jackson was also a victim in the armed robbery the defendant had against mostly tommy jackson testified in mostly we're sitting there defendant and accomplice come up to finish carrying a twenty two caliber rifle the other guy doesn't have a gun no where for him possibly to conceal he didn't see to finish shoot mostly but he testified that he knew it was defendant the shot this is pretty strong evidence of course is the only logical conclusion when it was the only one with a rifle at the state's favor still it was a harmless error because if it would have been found guilty beyond a reasonable doubt so we we can take our pick on where you want to apply the harmless error but at any rate and again as for the excessive sentence argument it was princess toward limits the crime was serious when it fired gunshots in the middle of the day in a residential neighborhood at a business that was open  it's a miracle no one else was shot or killed or whatever by stray gunfire and the seriousness of the offense was taken into account in the deterrence factor that the court factored into it clearly this was not an abuse of discretion for the trial court find that way also the defendant had been peddling the criminal history already even as young age he had written felony convictions the state was kind to him before two times probation one time a small  short prison sentence both time probation he violated and then violated m s r after a short prison sentence so clearly the defendant did absolutely nothing to show any rehabilitative potential in the past with his lenient sentence there are no more questions thank you and if the state mentioned here the burden was at the hearing the burden was a conference of evidence and that's exactly why there need to be safeguards at this type hearing because there is such a low burden if there aren't safe turns where evidence can be tested at this hearing and that ultimate conclusion that the hearing could have been a factor in that trial and if the evidence that it would be admitting  way connected to the crime or acquiesce to the bride or in any way connected to the call in fact michelle's testimony is is the exact reason why hearsay is admissible at these at these hearings it is it should be considered with extreme caution the level of hearsay that is admissible and that there should be some sort of woman because michele's testimony is a prime example why  immediately followed up and said ok who asked to have the call made michele's responded server and then she says she admitted and then the state asked he gave the name as to who asked to have the call made and she said he that there was no evidence of intent and specifically act in the court's findings the court held are the court said the person that called mosely was interviewed by their van a police department and he said it was mr to be able to to confront him at this hearing ultimately deprive him of any ability to be able to test again and  i just have one this my client receive the maximum thirty year sentence he had three prior class four felonies none of which were violent and he he has a strong