the friend's testimony he the what i believe the theory was that originally when the stepfather grabbed the client around the neck and during a period of rage and that's how i think the record is laid out first states that it was in essence that it was self defense and then he states that the rest of the stabbings that he was unable to control himself he was out he was out of control and it was during this time he was thinking to him stop it you are not going to hurt my mother and again you are going to hurt my sister hurt my family again and so on the real crux of the matter establish evidence that would have allowed the jury to have found provocation evidence that he had learned about certain things closer within a week of the date of the killing the other acts that were the other acts of abuse have happened over a long period of time but to show the defendant's complete state of mind he had a right to have the jury hear this evidence and it was the right of the jury ground had to be second degree under the statute in a published case they said they had no choice but to find that it was seven second degree but what i believe the jury should have right to a fair trial then maybe just wouldn't be granted but we believe that this is serious enough to has impacted a fair trial because what section of the country think that that conclusion this course made it into packer's that's binding on federal a b s review of the question on the question of its admissibility and of course that doesn't resolve the constitutional question there still i the issue of even if excluded under state law it was the defendant's constitutional right to a fair trial thereby violated so i certainly understand your honour's point that whether this is truly hearsay or not looking back at it now i think there could be an on hearsay purpose for the evidence but be that as it may it doesn't impact really that's the issue that is that we're i think most concerned with here which is does it impact his right to a fair trial to present a defense and when we look at the record of this case it really stands in stark contrast to depend trist and other cases which are found there are constitutional error and excluding defense evidence but particularly that case since it was cited in the certificate of ability because here the defense presented a vast quantity of evidence of the bad blood and the just general bad behavior of the victim it wasn't frankly disputed much at man and the prosecutor conceded as much in closing argument saying you know perhaps the defendant had a right to dislike him and there was certainly a lot of bad blood there are so many witnesses testifying to the series of threats serious threats by the victim against protection and when we look at that evidence and then consider this small piece of evidence that was excluded i don't think that including that evidence would have changed the quality of the defense as presented to the jury so when we well with any any of the of the that in the pet earlier on that cover the same type of abusive conduct that occurred five days whatever it was a short period of time by the victim it's violent extraordinarily but those sexual additional sexual component to it that's correct but where does that leave us well we have a theory of the defense which is really a petitioner stated it's two pronged we have a self defense theory and a heat of passion theory well there's been no allegation that this would fit into a theory of self defense and as far as the heat of passion goes under california is this is actually spelled out in the report and recommendation by the magistrate judge i think correctly if the defendant has a chance to cool down after the provoking incident then the defendant cannot avail himself of heat of passion defense this happened they say the week before the killing so we don't know i could be five days could be seven evidence comes in and i'm not aware of any case which would find that and event a week before the killing well let's would have qualified as but the fact that he was abused isn't enough by itself to mitigate his murder to manslaughter under california law it's found in abramson which is unless the air had a substantial and injurious effect on the verdict it's harmless there's also the recent supreme court case of mitchell vs far as that which says that unless the state is objective before the jury and was rejected by the jury even of this one additional piece would not have changed the verdict and his right to present events was not in fact under the constitution that i was angry confused i just couldn't control myself it was more than just being confused and the jury how it was the sum of all of these things that the jury had the right to know it wasn't just a small matter it was