no expert testimony here you didn't disclose an expert prosecutor assured the defense attorney i'm not home on the expert the motion wasn't rule on trial judge said hey if it comes up a morning asked him questions listen to his statement that his father and hit him with a belt and observed the bruises that course at that point after listening to alex testify that listen to alex make some statements you know that is far beyond you know later on when he's talking about way it when the judge talks about lay opinion testimony you know i think that that qualify and then the second attempt by the prosecutor to get an opinion was met with wait wait wait we don't have you there's no expert witness disclosed here there is no x is under for twelve and there court responded i think it needs to this needs to be looked at very carefully the court says it's an opinion but the court does not believe it it's to the extent where it needs an expert opinion to testify to that it would be a way men's opinion as to whether or not it's consistent the bruises were consistent with what he alex told so the court's going to overrule the objection but i'm testified because the d a layman's opinion concerning the bruising is pretty clear that the court has this impression that a way opinion is kind of an expert witness light and that's just not the case that's not the rule the court went on to say in an effort to second effort to explain what it was what he's going to allow i don't believe it would require an expert expert testimony to testify or whether or not it is consistent with striking out with striking with an optic such as  think a layman can make that determination in fact the jury is laymen are going to be asked to make that determination so as not required expert testimony but it can be made by a lay person and his third by the apple was police opinion was a lay opinion on the fact that he has some experience some background that only goes to the weight of the evidence but it's pretty clear that the judge that this that that the trial judge did not have a grasp or an understanding of when my rule of evidence seven zero one which indicates that if a witness is not testify as an expert and opinion is limited to opinions that are rightly based on the perception of the witness helpful to the trier of fact and not based on the specialized knowledge that so you look at that and we know the of the classic situations where a layperson is allowed to give an opinion such as a person's age the speed of a car intoxication or three that come to mind  testifying based on his his his personal knowledge because he's heard out he's saying what alex i'm basing my opinion on what alex said i'm basing my of it that that's far beyond  the initial objection your crack the initial objection by the by the defense counsel was hayes not qualified and there was this attempts to qualify and then the second objection was wait wait a second we went through this we had the you know we had this issue come up in my motion in limine a and there's been no expert testimony disclosed so it seems to me that in the second objection was even after the additional question from state would have been that they still have qualified him as an expert but i think that certainly there was a motion for a mistrial following both his testimony and those and all of the issues all of these issues were raised and discussed he's not qualified he was never i'm just making sure that i understand my mark exactly and that brings that brings us to the one of the the third of the third part or another part of the expert testimony the court twice  we don't need and we don't need to export opinion on this case we don't need an opinion on it he says expert opinion but he says it will let you know a layperson can figure this out and any opinion expert opinion our way opinion as to be helpful i and his his statements of the opinion he gave his statements that he was hit with a belt are consistent with what i saw which is in the nature of expert testimony he he he was he was that that's the opinion that he was all that he was he was allowed to testify as an expert even though the judge said this is a lay person testimony the opinion he was allowed to give was in the nature of expert testimony where he was allowed to compare i listen to what alex said that is consistent with being with what i was being hit by a bell i didn't portion of the foundation for any opinion is not  allowed to address for a moment this issue of the prior inconsistent statement as substantive evidence prosecutor called alex's younger brother c k as a witness in this case first the first part of the direct examination of c k was that when he was in the first grade he talked to some officers he remembered that but after that i mean the odd that the prosecutor then asked remember this you remember that whole seriousness of do you remember questions and that the direct examination ended when when c k didn't remember anything then there was some cross examination but during the direct examination c k was never confronted with any statements that he made during his april seventeenth child advocacy center interview we know what he had said anyway that during that interview yet after c k testified the prosecutor sought to have the tape of the cac interview let that in and then there is a discussion about how much of it would lead to the foundation the basic foundation the tannic set of impeachment simply did not happen properly at this trial we all know that when you want to impeach somebody with a prior inconsistent statement you must confront them with that statement on the witness stand and establish that inconsistency well that's just a meaningless exercise in this case it's not it never is when you are with you when when the witness says the light is green and you have a statement that the light is  red you must confront them on the witness stand with the statement the light is red because they may agree with you we're done that there's no need to complete any impeachment the witness disagrees with you and no right was the light was green then you have an obligation to complete that impeachment you so that it's a fundamental foundation for him peach meant that you must confront a witness with the prior inconsistent statement on the witness stand that was not done in this case this is it i did we don't know why but it just wasn't done time is it because he was do you remember telling the police well that's that's that's part of the problem and i learned that the hard way and you know most of what we learn by we learn by get our butts kicked somewhere trial in front of judge scott where i asked a witness do you remember saying it x you know do you so that's part of the problem that what should have been done is the prosecutor should have asked c k do you feel at that you did you did you state did you did you state that your brother was at the end of it in an interview or up with on such and such or somehow identify that the time did you state that your brother was hit by about that you state that your brother ran zero effort to confront c k with the child as he sent her interview statements not even you remember saying on april seventeenth such as not even that was done so we had no effort at all and that is that that's beyond that that's not just a pointless exercise that is the battle for impeachment the second problem here  is that the in court testimony was limited to i don't remember alex being hit by a belt i don't remember talking to officers i don't remember telling officers that alex got hit by a bel yet the flood gates were opened when it came time that when the judge ruled they were allowing this tape that the flood gates were open information that was that was that was well beyond what c k testified to at trial the only thing that's unusable when you're completing an impeachment inconsistent statement that is actually inconsistent with the witnesses in court testimony again a fundamental rule other pietschmann me going back to my example the witness says the light is green  i have a statement that says the light is read the witness denies that i present that statement but i also get i don't get to present the bill the light is red cross the the driver got out and dance but the fact that i grete one hundred percent but what they got in here was see case statements that was got hit in the chest the feet this section got in that paddy was had he was there when she said she wasn't there they got that that bonus they got in there that you know some some specifics about school discipline which was not which was not inconsistent with his in court testimony all manner of things that were devastating to this to the defense case that they never should have got in because it was not actually inconsistent with the witnesses it was the case in court testimony  opinion in the port district that has what we have here we have a situation where the prosecutor provides this and sworn testimony and then cross examine testimony about what happened and who to believe again the prosecutor lead to lay a foundation and then the prosecutor laid a foundation which was absolutely fair nation or expert testimony it turned out it was like witness lay opinion the jury had before them of during the course of the discussions and or whatever it was regarding the motion limited to the state ever indicate to the court that it i as i recall defense counsel did almost all the talking and that motion let me hearing stating i talked to prosecutor don't think i need to pursue this motion now in the court said fine if you need to need it before trial just give me a investigated hundreds if not thousands of cases and looked at certain kinds of injuries did any part of that additional test would say yes and i've seen injuries from a belt of that questions posed to him were found by the prosecutor were foundational and establish police familiarity with bruce patterns and it was a basis for the court to conclude that he was more likely to correctly identify the instrument c brother and he testified he remembered talking to some police officers when he was in the first grain but when he was asked would he talk to the police officers about he did not remember he did not remember a k getting hit with a belt he did not remember coming to quincy and seeing down with an officer and talking to him in a little room he did not remember having an interview with police officers he did not remember telling the officer he saw his brother getting hit with a belt he did not remember telling officers his brother got in trouble at school he did not remember telling the officers that his father hit him with a belt he did not remember telling the officers said hey tried to run outside he did not remember telling the officers that paddy told him to come in back inside he did not remember talking telling the officers that scratches on his chest and he did not remember why he talked to police the year all of their staff consistency such that the statements the statement that c k gave to the  inconsistency are you saying that the testimony as it came out was equivalent to talk from taishan i think that he was it wasn't he wasn't confronted with this your statements here but he i think they knew was he was confronted do you remember telling him tell me officers that you saw your brother getting hit with a belt and i believe that's sufficient the miners had professed memory loss and prosecutor admitted that at the end of the video this is a part that wasn't made in or seek a droste is fathers and guns that would be prejudicial so i think that the court probably admitted what was inconsistent court was not required to make a quality quantitative or mathematical analysis of exactly what should come in or what should not come in and i think all of it was admissible and allow the jury to view the demeanor of the witness if you just stop and start the video in and leave out big chunks that is not a doesn't allow the jury to view the witnesses demeanor asked for closing argument that issue is forfeited as there was no objections at trial or not and it was not included in the post how motion plane air is a limited exception prosecutors are giving great leeway you want to argue in closing argument a prosecutor may state its opinion his opinion which is based on the record or on legitimate inferences derived from the record and while the prosecutor said i think or i believe this court has rejected the argument that anytime a prosecutor uses photos that those phrases bear results and every time the prosecutor used one of those phrases in this case he also talked about the evidence he talked about the shape of the  bruises he talked about the color of the bruises and then he would say i think so he was making legitimate inferences based on the record on the testimony on the photos and  bailey case i cite in my brief the prosecutor used the words i believe and i think nine times but taken in context and based on the evidence those comments were not improper and i cases that he said i think that the detectives the officers are allowed to testify face on their experiences something looks like a line something looks like brain manners that's not specialize in the early i believe it's experience i think in this case it was eliminate and as often happens there's a discussion between counsel and they and the defense counsel puts on the record i've been assured there's going to be no expert testimony in this case and you know the court pool of knowledge issue which is hardly expert testimony and then the that the judge switches gears that i think that's one way to look at it but it's not letting testimony it's not that this was this man mr foley did not limit himself to lay opinion testimony his opinion and i will repeat it was based on what this child said that's consistent with having been hit by a bell that's not opinion testimony and i believe that the trial judge did well i don't think there's anything in the record where the judge instructed the jury about lay testimony the judge did make some statements about that i abdicate the requirements or do away with the requirement that you have to confront the witness with the prior inconsistent statements you know look at the you know this is known as the turncoat witness statute where you know  didn't i don't remember i know i don't remember seeing that i didn't see that did you say to the police on tape you saw joe shoot jim i remember that you have to confront that the next step in that direct examination by that prosecutor is in such and such a day you on tape you've told the police that joe shot jim you have to do that just because you profess memory loss the witness professes memory loss doesn't mean you you you are the prosecutor doesn't have the neck to confront a witness with the prior inconsistent statements and and the that is the essence of the a prosecutor says i believe it's my opinion here there were thirty and only sixteen pages of transcript and not only was it i believe but he's like i believe we've heard plenty of evidence that shows that charles armor struck his son with a belt he's putting himself in the jury box not just i believe but we've heard this you under thirty the thirteen of us the thirteen of us that are we know what happened here and then and then slams the door whether it's a high burden yeah but we'll talk about it if i have i don't have that moment this is far beyond anything that's been established has been appropriate and any