how these errors are reversible error given the evidence arguably supporting guilt under an accountability theory mr smith depends at trial was that he was not involved in the offense at all either is the principal or under a theory of accountability really an issue of charge when he actually was only if the trial for seated evidence was presented that there was a second shooter in the car from where the shooting occurred and that is why the state asked for accountability instructions because they didn't want the jury to be misled into thinking that if they didn't prove on that mr smith based on their theory was the one who actually fired the fatal shot the other person follows geno adams testified and he was in the passenger seat of the deceased car and he couldn't identify the shooter even though he was in the best position to do so because the shooter's car pulled up right he was the backseat passenger behind the driver and he also testified that mr smith participated in a speedway shooting a week earlier and there was ballistic evidence showing that the same gun that was his position any less than mr adams because he is in the back seat and the driver sciences so if you think of it and the white car pulls up right next to the passenger side he's he's looking at an angle i guess but you know through the seat and through the window and even his time the morning actually doesn't support the conclusion that he was in a good position to do so  the when the white car pulled up he was actually looking down he looked up he saw a guy on the shooting started and he is you know a few seconds titanic by the shooter so he had his head a little made those determinations and found the defendant guilty this is what did the errors in terms of deciding where the errors are prejudicial you have to look at the strength of the evidence is the overwhelming evidence well no that i would say that there's a question as to whether he was really there get it and i think what's really telling here is that if you look at the state's closing argument they distance themselves from bond in fact the state's opening closing argument they don't even mention his name  they say this is you know just look at the surveillance video that's roger smith i may have to be up well the only one who testified today i wouldn't bone with detective home so clearly they're trying to use the weight of his authority to say this is this is robert smith and they're defined robert smith by the way he was dressed as opposed to any other features on that particular video that's right your honor and that i guess what's interesting about that is the state actually before they present the speedway surveillance video  present this very clear video of when detective homeland meets robert smith at the hospital because is he right because his brother in law was shot and you can see exactly what smith is wearing wearing the you don't forget about larry bowa you don't even have to consider larry bone because we have c s i and c s i is the speedway surveillance video where the officer identify it's smith improperly and dance preven gun in his hand in the speedway video the white shirt male does have a gun in his hand yes yes and again but that was for the jury to decide whether that was rapper smith with the gun and with the gun that they are saying that he he gave a very specific that smith told him he was at a bowling alley that he left the bowling alley that he heard about the shooting and where directly to the hospital and that he was never at the the way that i mean it then that's my recollection of it i won't just mr smith look anything like mr charleston if that's a person in her last name i'm not sure i mean is that an issue in this case they there was no description identification evidence is james charleston's testimony that mr smith gave him the guy and he's impeached by a prior inconsistent statement that mr smith didn't give him the gun that the gun was his and again that's another error involves the fact the wasn't smith it was charles and he is unable to heave teach him but in closing he's unable to argue in support of that defense theory you can look at this statement this is equal as his testimony so you can either decide again basically line from line closing argument didn't write and say how would it be any different it would have been different if he could have also pulled the instruction that says you can consider this a substantive evidence of sex a bit to the jury do you think the jury knows the difference between substitute habit and seeing and hearing the verbatim word for word i think you should have understood it much better if he could have used an instruction to explain to him and that would say if you're going to get an instruction that this statement here is just as equal  is equally weighty and or is this is equal to his testimony and you decide which was true not that this statement makes him a liar or this mid statement you know he is inconsistent and i do think too that had been admitted  statements to be used in a subset of evidence and the statement talks about whether in the areas describes explains an event or condition under your theory what is the event that mr charleston would have been explaining ornary event that has anything to do with this case isn't there just purely impeachable why i lied and i'm either lying now or i like them i know because well first of i didn't want to go back to jail i mean these are all facts within this personal knowledge right i didn't i think but what's the event that makes this relevant to this trial as opposed to just pure and simple impeachment that you said something different on another occasion for example it would be mr charles didn't have ben the other guy in third guy in the the white car that's personal knowledge of in  what i guess what i'm trying to ask you is where do we draw the line between all impeachment can be used as substantive evidence and data which is just should be relegated to just impeachment i guess if  would have written in that statement i falsely implicated i did the math and i did it because you know i don't like him and i you know i want to see him go i do time with this the difference between that brain and what mr smith said as to why he apparently changed his story because i think this is he because it's not that he's not just giving reasons for why to anybody he's giving reasons for why should we draw the line as to who you said that your say too is that the critical target is that that he's saying that he he is not saying hearsay to anyone he is saying i think that you can't go that far you can go there hard to say the event is his interrogation by the police that's the event and he is describing the circumstances of his interrogation by the police that he has personal knowledge off and that can be we're going to use thanks explain what is an event or a condition and i guess i don't have i don't think it's problematic to read it probably because if you could read the statute pretty literally and apply it and you can say he had personal knowledge i  don't think that it's problematic at all to read it broadly like that given in the just briefly just briefly then you're not you're saying this is reversible error because of the fact monsieur and not here and i again i guess i'm missing the connection there because i use it are you saying that if accountability because change charleston may have been involved in the incident as well and  so i guess i guess if you could explain to me the connection between this prior inconsistent statement and the accountability theory because because there's just no evidence that gene charleston and smith work in concert is to this statement back to the jury they had suggested that the offer the entire statement was inappropriate so they suggested you know perhaps if you want this in we could do some sort of redacted there was never defendant's mom and she also states that the defendant came over the day after taylor shooting brought the gun and gave the charleston she's the one there wrapped up in a towel put it in her purse and then they transport it to grandma's house and hide it in the rafters in the basement so it's not just charleston saying you know this is my gun at the end as the depends on so says that defendant brought the explanation then of how you know if the gun is in his possession or in grant's rafters you know it's not the touchstone as to whether we're crazy statement is not there's no exception under the stand you just say is it was it as substantive and then use as evidence that perhaps he was you know involved or they're trying to blame him or he and for the defendant you know didn't bring the guy you know in the morning after this is not a sufficiency issue this is if you take that statement if the remaining evidence has to be overwhelming where is there overwhelming evidence in this case ok i'm going to start for a couple  spots on refrig first to the speedway video where you see there is the white automobile with the gentleman in the white shirt gas pump number three where the ball is now from the gun then have a defendant's denial that he was i believe he said he was you know at the tavern he i think said he wasn't at the speedway nonetheless he shows up at appearance that night as officer hall and would have seen him later when he talks to him in person at the hospital and it shows the white t shirt again this counters his argument that you know white grand prix which is you know matching ironically enough the white car at the speedway the way grand prix is said the man as the defendant's mom's car defendant drives it he admitted he was driving that white grand prix the night of the speedway incident ok so we've got the white car which pulls up next to taylor's car so we know this isn't you know an accidental shooting you know that goes to the motive they stopped you know be away from the car it's not an accidental shooting because it's you know in that high jinks on the fourth of july were shoot into the i think it's three bullets are found in taylor's car and they are shot from the gun the bullet which comes from the autopsy out of taylor's skull cannot be be asked to the gun specifically it will give you that somebody killed taylor and in a tensional back then you have larry most testimony that the defendant is the driver of that white car and he shot this in her own testimony question i don't think so i love you he explained why he delayed identifying the defendant he is seated in the back seat and he says that he is looking out the window and watching that's why and  testimony is that you know he in the driveway we're looking ahead you know if he glances over you know he said he saw a gun that's not unusual if you're that close to a gun you're going to focus  brings the gun he gives the charleston city man and as wraps it up in a towel the next day they put it in her purse and they take gates to grandma's house where it's concealed in the rafters charleston is  up by the police and he says you know oh that doll and it's in my grandma's rafters and then tells them where to go and find it the police going finally got him and you know the ballistics show that it was the bowels of impeachment and what is the actual event in the trial judge's comment was that what he's doing is denying things he's not testifying about in the event so i agree that the trial court had that right it was in peach mint you know and as i said you know if it was in some way here it should be considered it's harmless error because this statement you know car which is the grand prix which defended him that he was driving in the name of the speedway is at the table or shooting is the mother's car yes months of car they actually find like i think a bullet that had been you this why east charleston statement if you're only about to take all the other stuff out and say i bought this going in march i had it in my possession i wrapped it up put it in the rafters don't know how it got out of there if you tell me it was used in it in a friend's why isn't that an event of which charleston has personal knowledge it certainly is relevant because the gun is the keystone of the state's case if we agree that boehner is perhaps not the in this state had said you know sending him back is not the same thing as agreeing you can be a substitute boy i'm asking you tell me why back portion of the statement i bought the gun in march from a guy on the street yada yad event that is the subject of the complaint i don't think there really is i and then would it have been any different i believe the statement says something like i told police i had a gun someone get thrown to me but i already have a thirty eight if the statement had been i told the police i have a gun smith had thrown to me would that have made it and different  their never involved never had a gun that was used so you know if he is say you know i was never there then you know i think you know under your surname you know it doesn't change and again is the accountability came in when the second arm is coming out and shooting and they find the two different types of shell casings and the in the fed he was guilty under accountability because targeted as part of the revenge or motivation that there's no evidence he was at this the way he just happened to be in the car a week later with adams and bone  and then we have the legal responsibility which is kind of active another person so that's the kind of design portion which isn't for me in this and then in the third instruction which defense counsel is are you sort of takes that into a felony murder i don't believe it does so because that has been modified to specifically say that can be combined to do an unlawful acts such as committed first degree murder so that takes away the there is a recent court case earth piece that was state filed a motion to publish the decision and salazar there is sort of an update me on this and it talks about some of the cases but reference to this man as saying that she also said that robert smith brought that on over to the house is he she did not testify to that she testified that he she did not see him bringing the gun to the house there is testimony from detective rivera who test who interviewed her that she told him that but even if you look at teams charleston's testimony he never testifies this is the amanda's i also saw robert smith bring the gun into the house at all in fact it the whole issue there is whether she saw mr charles in pointing the gun at her or whether she showed it to her under the bed which is what he said he did so there's just not evidence that she she said that did she have but she does have some interaction with the guy that's not disputed correct right after afterwards if she in terms of taking it over to response how she does the state refers to the speedway video during the closing argument again when the sting said forget about larry bowa you have the surveillance video and that's the defendant in it and then the jury actually asked to see some videos but then they returned a verdict of poor watching and i would suggest determination against that officer of the jury didn't see if they did see the video they did see the video yes you're right actually to be perfectly clear it's the state that keeps referring to the defendant do you see the identifies the defendant as being in those still photographs still the images from the video then miss campbell refers to the fact that you know mr was identification your honor because the evidence of identification was not overwhelming because the three errors in this case went to the identification of these errors individually or cumulatively and i will say that i have an argument that there could be considered defendant had brought it over correct and yes she told the police officer that it depended had brought the gun right but and she had seen him that day so this is my question to you why should the difference is that the other evidence shows that she didn't have personal knowledge of him bringing the gun into the house how many every other evidence actually contradicts it and in that doesn't make it inconsistent i guess i  she says i didn't see that and i didn't say that great but she did say when she told a nice officer that so my question is this is my issue how far do we go in saying that anything consistent statement now becomes usable as a substantive piece of evidence and i guess i would have to say you know looking at the requirements and then the biggest rip current is doesn't marry at the end of which she has personal knowledge so i guess  really don't want to concede this because i don't think the i don't think in the reality of it is i don't think that she saw that all the other testimony shows that she didn't see him bring that in and i think that the state never relied on that certainly a trial that was not one of their big points but you know i guess if she had personal knowledge if she has personal knowledge you can show she has personal knowledge that he brought it in i guess they could use the perception of evidence but