MLCommons/peoples_speech_v1.0 huggingface dataset:
on january twenty fourth of two thousand and six the city council the city board reviewed the application voted to a six six time on our saviour's petition for special use there was a argu in this particular instance however when the statute was amended to arguably control this particular case all the briefs have been filed in this case the image was affected by gene or if you january first of two thousand  thousand and eight excuse me figure seventh of two thousand and eight in january two thousand native weed was the day that asheville actually liberty bill came down from this particular court that talked about  here under that framework and if you will of analysis the standard of review in front of this court would be whether or not the the conclusion of the plane commission and the them play they made two motions for judgment on the pleadings and then asked for a trial did october past two thousand and seven they asked for a trial and you think if they're going to take the position here that under naval time record and we filed an answer and from that point out it was basically a paper case now it seems to me and i want to answer the questions that you force asked pipeline a three spec to  based on the way the case was tried i don't think the scanner review with dollars due respect makes any difference and here's the reason why if you go back and read justice mcmorris opinion which i know you're probably familiar with that i decision so in my opinion with respect to the way this case was tried there's no reason to send it back they submitted it based on administrative review they get a filing a case under will sail if they want to they chose not to that's her choice the to regulate by and uses under their police powers there is no doubt about it there is no fundamental interests that it's give the located here now they claim we take this seriously any time somebody comes to a government says basically you selling official he's not a super zoning official that stack his job and i don't think that's what this court's job is either i don't think that's what you're in the business for in this particular case the manifest the weight of the evidence they never testimony is no relevant when we have a neighbor stepping forward and saying well you know i think this is a bad thing i think so when you drive up the driveway drive in the mine or the room i think you should reconstruct
which resulted in the finding acquiescence in those cases which are much more extensive than what took place in this case which was one motion as opposed to years of discovery and so on in the
implicate me right because this is this is personal information and i think sense of this cat
a mandatory requirement as opposed to merely permissive or discretionary i don't know how much any particular depositor lost i do know that the the amount of loss attributed to the project was five point five million dollars and that's not that was is not  controversy that was admitted at the decision making authority and the fact that some district courts are doing it would be in keeping with what i am going to said but on those courts the questions of those course the question often does the defendant even mind that the court had done anything different how did known that the guidelines were only advisory and to answering that question of what was in the court's mind really only the court can do that no one can simply to decide whether the trial court would have done things differently so all these issues as to whether the guidelines were properly applied have not been preserved or not properly before th court and is when the it's also the fact that below at the dispensing hearing the defendant  example we know that the prior panel already said that the two level unhandsome for grouping is a proper that enhancement only makes sense if the money laundering group and the fraud group are within when the prior panel said that the two level hands been separate groups is appropriate it must have had in mind that the eighteen levels for money laundering was also appropriate otherwise the money in the fraud account would be twenty four levels and the money laundering count would be eight levels and there would be no issue of the group being because even if they were s they would be too far apart to have any effect on the actual guidelines level so for this court to entertain any arguments as to whether the money laundering amount or structuring else is
trial strategy or anything and then the district court goes off on that tangent addressing saying it's merits based and addressing the merits it seems to me there's a disconnect here and i go back to chief judge with he's question don't we discovered so can we not reasonably say that all he would be doing here would be sending it back to the district court to the district chip for it to bolster its view that council acted reasonably because given these different situations these are inconsistent statements and the impeachment can't say it's not are wrong he was that he was in effect or were that there was would be prejudice say that it was outside the range to not call her because this impeachment evidence would just create even more doubt as to what she was saying it seems your i know that to be a little bit  with the prejudice standard reasonable probability that the outcome would have been different but the reasonable probability argument is one that can only be addressed by  that's not what it's about it's not listening to it is not about actual subjective rationale but it's and you're saying we have enough here to look at what she was going to say and how it interacted with others and the actual rationale for his actions rather than on speculation about counsel's possible rationale and evidentiary hearing as well as how then branch is required where petitioners claim turns on the reasons why his counsel did not call witnesses to testify and those reasons have not been developed in the record the court's determination of a strictly a claim but players an analysis based on a complete record and requires counsel's actual rationale but his decision a determination must be made with the understanding of counsel's thought process so that a conclusion whether counsel with ineffective can be based on facts of record and not on assumptions or sheer speculation the court must determine count counsel's actual intent because otherwise the when we're hustled as to why would you call this person but when we when you can say and look for the record and say ah i know why you wouldn't call this person doesn't that kind of and the need for hearing it is not your honor because if in this case there is ample there is no indication on the record well counsel's actual rationale was anything that we would put forth that the commonwealth that's right is a theoretical and hypothetical justification there are theoretical justifications but those are the kind of sheer speculation that an evidentiary hearing is to provide if the justifications were were off the wall but we we don't agree with the justifications but we look at the  issue would you would a reasonable attorney have had a good basis for for calling this person or not we have to say the end result i e that she wasn't call
or whether a seizure occurred at the outset when the officer i turned on the squad cars the spot light in the parking lot where the defendant had parked will be you take that position don't you that the officer had enough information to make a seizure after the stop took place and wasn't that sustain maybe i'm wrong about that and then or is it possible that this testimony you're talking about him staggering in seeing the beer can all that was in the  well there's a lot packed your first of all i would suggest that the states argument here that there were two while you see violations that have justified the traffic stop even if it driving to consider that there may be wrong room right here and certainly public urination whatever that is about it certainly doesn't have anything to do with one so looking at these facts clearly not on one  was a seizure ok but prior to that the police officer was or he didn't see the nine one one call but he was from dispatch he told there's a nine one one call about this truck it's head in your direction they see the truck they've that there is no there is no difference live and did not distinguish between the use of the flashlight and spotlight and again discuss the policy reasons why officers should not be required to conduct encounters in the dark
but didn't quite case leave open the possibility of the state during the case itself could have shown that there was the threat of physical force or violence as part of the domestic battery conviction and if they had allege in the fans it is that had it been brought to the court's attention there may have been the finding that they did not approve the offense which means it can't be question of how the fact that your client pled guilty impacts the analysis in this case presented then maybe that gets you there for the forcible felony so in this case where the defendant entered a plea of guilty is he waving i mean can he enter a plea of guilty and then now say well you didn't prove the federal system right that that's the next part of my question which was my statement but your position is that johnson used a categorical approach based on the statute they were analyzing but that based on the illinois statute we don't have to use the categorical approach because of the difference in language so if we were to determine that we are required to use the
result the state needed to lay the foundation for that with us it was all there there's certain requirements what we're talking about here is the third requirement under the people the orth the the machine was rather analysis technician or automated system perform accuracy checks at least once every sixty two days the accuracy test results are to be recorded in machines logbook or internal memory or in the central verb certification in the company documentation may be admitted under the business record exception to hearsay but it's certain that you did not establish the foundation to it and that the verified certification as a business record his r three six regarding the regularly conducted activity in rule eight or three references and romona to a level in their verified certifications stated in words of the record of the accuracy checks on may first and go when we don't have the may first result in the logbook of the prosecutor in this case represented that on may first the tested in a remotely reform other remote location you can actually test the machine electronically in the machine some machines are set up to automatically self test the home also knows test would not be in the long boat that was certified accurate on june fifth so those words system check past can only be reasonably interpreted to say that the new machine was certified accurate through the remote testing on may specific machine that was used in the administration of a blood alcohol was yes but we're trying to we're trying to find the compliance with being certified after wri the specific specifications of a whole series of house and the problem here is the documents itself don't say that this is the final one in the series of tests or really what new that documentation means and saying that
issues could have been involved in this particular zone so do you want to that goes to this wasn't this issue of the convictions wasn't preserved so you're talking about the well if we want to stop there for just a minute though the cases that are cited in the mcmath and strike were cases where the objection at issue was raised during the course of the trial that's why there was in fact this is this was not this was a motion and eliminate decided weeks before the trial so there was no objection then made at the trial right at it and they stayed in your didn't the convictions go to your the argument about the policy to the nature of the crimes that the officer rosencrantz was investigating or pursuing that these these men were so that's important because in this particular case at the time the impact takes pla was the the trial affected by the policy which which came into evidence ok you're right it just building on that i mean if you can really touch on to how since there wasn't a question i suspect is there as to the sixty or one of the structure whether or not the giving or not giving you that instruction which was not submitted which was not true that wasn't submitted and i believe that i so that's different than not being preserve jury really would be diverted from the real issues why wouldn't the introduction of these convictions as opposed to let's say just the admissions or the statements of the defendants why wouldn't the jury be diverted from the they could have all these three convicted felons they could have brought them in this witnesses they chose not to do so if they wanted to spin their convictions or clean it up so that the jury wasn't just wasn't differently it's no cited in the breeze two thousand and seventeen elect first one seven zero five three seven there are the quite seem to say the final mission of an internal safety rule is some evidence of misconduct and pre event or create accident events coming in and get that i guess i'm getting it backwards but i guess my point is the judge allowed three accident events and post
going to die and if that lesser penalty might at some point give you a parole which you wouldn't get if you die well in this incentive for him to to incriminate toy rizal so that he can get this deal well  absolutely everything a and so what it shows actually is that the is that the judge did not find this was an improper avenue for cross examination she only found that  excluded that that is not the expectation of promise on which his needing to testify truthfully cheap gas thirty five years that there would be some relevancy however you also as your honour's know the death penalty was already abolished by the t far as i can see from the record it was in august nineteenth i believe with two thousand times that he actually spoke to the state's attorney so all the record is is can be i'm sure based on any reason to gather he is not wearing this promise and expectation is at this point because he knows he's serving for the smarter i think the problem here in this case as opposed to some is the fact that not admit that the defendant shot the gun he said that he saw a flash coming from that open window and there is at least an inference from the surveillance video that the defendant entered the front passenger seat when he returned to the testified that he is part of the deal he gave he basically did his testimony to to the state and that was going to be the yardstick by which they were going to determine whether or not he was telling the truth
much as far as striking somebody with a criminal case received a conditional supervision that is the statement but in any case it's not supported by the record in counsel's reply brief you mentioned that there was something in his reply  something be had the underlying complaint and portside in that case yes you can because the issue in that case was a provision of the insurance policy decision has been decided by another court so i drew from the allegations of the complaint are very clear that it does allege intentional conduct presented with an order any case what it did not show was that it happened on the same dates but it involved the same parties for all we know it was a conviction for something that happened two years or were two years  were someone takes a fleet because they're facing a large that means or something that's fairly rare and they say hey i'm going to take my chances with me i'm not going to for litigate this i have no sense to to take a shorter
we do these cases just like this in peel and sometimes it's worth the focus a lot is being made of the all but they're all people and in this case the most important to people in the case were julie and chase who are the children of the change has to have some adverse effect on the children to change what's going on in this case the children will do great so i'm sticking by that just it wasn't there g a o report there was there was a  father however that recommendation alone by the testimony of the girl life did not take into account he said the legal scheme all he was doing was with a straight at best interest and this is not best interest standard yet so is there a change there's plenty of reason to say that there are the core he didn't say that children have been affected h children are doing very well again to get back to that and we get back to a couple of other things he suggested that this was a cooling off first case i disagree one hundred percent because i moved in the first case and because the guard lied repeated in the first
crime and they have to pay a five hundred dollars fee to the city to go and pay the thousands of dollars to the total company to obtain a car back that's a different in the morning here are to somebody else several of these cases dealt with as well as  it pretty much it was said we're trying to prevent the commission of these crimes compensatory you know part two i find that as a theme well every fine and saves the government entity in some way shape or form they give money back to that file if every
comes let me look let me understand the procedural pass through this case if you if we were to rule against you with respect to the exhaustion issue and we say there were there was exhaustion  mystic circuit if you look at those cases they are simply applying the roberts test even though if this court considered the testimonial non testimonial divided before even reaching the roberts  pieces that the state has cited for the support that this is a different claim i don't think there's a single one of those cases that actually addresses a situation like that that the closeness of this the king versus role in cases where the petitioner r violated so we believe that even though he did not brief it on the roberts issue there is no reason why this court cannot and should not reach the roberts issue at this point to switch gears now the other question i asked was are not considered to be firmly rooted hearsay exception also cuts against a finding of a guarantee of trustworthiness it's also important to remember that there was no finding that kate was competent at the time that she made the statements no finding that she understood the importance of telling the truth of the situation or what the implications of telling a lie would be  if if there is not testimony that the hands were under the clothes then there's an additional finding of sexual gratification that's required moreover i think if we look at the state's reliance upon the state during the trial it's clear that they were important to the state the prosecutor noted in closing we have k company officer couldn't we have her telling officer who to making the statement and emphasizing the timing of that incident that was that it
out of his car and then walk from his car to the other place in your commission found that he was in the course of his employment because you have the visa requirement to travel to and from two bags  traveling employee doctrine as i understand it is is really out there for people who go to a job site who have to you know travel away from their home to a particular place to do their job because when is a person who had to come to places of
will when they're describing what they're basing their opinion on they don't mention they even mention fisher's job to these they mention the fact that fisher this testimony was the same to the commission as the doctor and there's no finding in fact that had a reasonable basis for fighting the mystery of his job duties contributed to the development of his carpal tunnel syndrome mr green's was an over the road truck driver he testified as to his job duties shifting the manual transmission gripping the
of the nature of the encounter is completely irrelevant and i would agree though would be that what begins as a consensual encounter keon become the seizure depending upon the whether a reasonable person would feel that they are not free to leave but the court can still consider the police officers judgement of what the police officer perceives and making a determination correct it's a fair which i don't agree with that reasonable person with a reasonable person would believe that they were free to leave and then you know raises various factors that may be taking into consideration the types of factors and maybe consideration the presence of often police officers arrest and the same machine both ways so we run them together but you are out there was it an issue as to whether or not out the prosecution merely cross examined and that is how the number of factors a court should consider when deciding whether something is a seizure in the one in this case the one that the court used to make its finding that mr duncan was seized is the form of the use of language or tone of voice in  reasonable person would interpret those commands as such that could not be more compelling his compliance and telling the defendant that he was not free to leave now you've mentioned in your your brief you characterize right now in the final we are seventeen he's the truck actually such days he'd be on the show he didn't even do the order of commanding he asked him to turn down the user in the music wasn't turned down focus singularly on the commands of so to respond i think at the end of the day we need to look at where the court ended up and so when the court has some time to think about it to deliberate a little bit and we're flasks during that period of time between the motion to reconsider we believe that the judge got to the right place and testified to the commanders of the officer testified that he take it in the context in which the words are spoken yes but i don't know about the changes from not being the command of someone screaming it here regardless of whether there's music or not you know good to be taken aback and so words when they were in ask or command no because it's an objective analysis as to whether a reasonable person giving to find this position would believe they would if someone standing there and i can't issue this was not a close business it was open it was a twenty four hour told it was two o'clock in the morning they have cars coming out of both patrons and workers but all hours of the day so the
can't know that medicare here without analyzing what kind of damage it could have done and certainly in this case it could have been enough to change the jury's mind about who to believe when we have almost no evidence other than