let's assume argument and that's all nonsense what's true in this case let's assume that mr bollen based on what he says in the interview what his father said what was otherwise shown basically be a harmless because there's enough evidence otherwise to convict your client and that hypothetical you know your honor respectfully and i sort of have to respond to the st is that act basically throwing the whole the yob based device of what there may not have been suggestive i think you know and this is a balancing test and if he if his identification about this and they didn't even try to fin this guy or not if you already identified him i would have merit you know made clear that he was frustrated by your eyes and ability to identify mr ball and and that's why he decided to do what we needed to do there was no identification before th resemblance it's calling it identification but it's pretty clear that what he's referring to is only the point at which he says there's a resemblance relevant when he says yes i'm you know i'm seventy and ninety percent sure that is the guy who does the holding cells maybe six or seven holding cells which there are quite a few people in each one of the cells is warned ahead of time well you know some of the prisoners may be dressed in offers uniform don't look at the clothing is necessarily we know we know that assuming that that's right that he was not is one of the holding cells and though that's certainly the way i read the record i was trying to figure if there's anything more that i hadn't yet what everything you told me i already knew we were on the question of suggestiveness but not just significance  we think that either of the two uncertified issues is a close question is it possible that the those questions would look different after ryan stana bams and then we remain beyond attempting to go back to state exhaust let me ask you a version of the question i asked her opposing counsel for a moment that we find that at least one of the honor i believe that the petitioner could do you as he wanted to do in the state court and present whatever claims he sought to exhaust the question would be whether the just recorder would be able to hear those claims but was there exhausted i think th asking if we only look at the merits of a single claim and identify a single claim and then tailor a remey onto a single claim about was the scope of the rematch and perhaps i misunderstood that or missed or read something into it that wasn't there but i don't counsel that the that the detectives didn't testify that he was not in a holding cell but i also i think that's enough then ok that's what that's how i read the record but i want to make sure i've seen everything that is to be seen on the question so the st time that he along with other individual would likely have been more suggestive if anything that was that was not nearly as big just because that potential scenario because mr bullen was in a company accompanied by author that had video rental place that they were had asked them out on numerous occasions and demonstrated an interest in all of the her and had multiple times over a two week period and then after viewing the video  know i apologize i don't recall in the timeline if they had gone to the home prior to bringing him in i believe they did executed a search warrant at which point think found the last thing taaffe added at his home that he declined owning that there was a screwdriver that needs covered with blood apparently that was in the product that belonged to him one was that found her and was that was that found before he was brought into before your honor i'm sorry that i don't recall from the record and and they spoken to his father  this was an individual who had been shown to be interested in the victim had interacted with the victim over the victim and her family over the past few weeks was even wearing the same outfit on video that was later described by the witness of the perp and leaving the victim's body and then the truck been found a few blocks away from his home he does not have an alibi well i'm sorry doesn't have an alibi may or may not be believed for he doesn't have a credible out of alibi what incentives but he's also he'll to misrepresent to law enforcement what is background is what whether he has  a criminal record he lives in law enforcement about whether he owns the type of shirt that had been in the video and there were and he does speak to a jailhouse informant about  fingerprint evidence but if someone did believe by the jury that not a key issue but considering everything together yes tire bag identification is important and even taking the totality of circumstances under bigger defendant had been put in the lineup and picked out that would that have here in all of the problems your honor it would have been it would have been a a an appropriate procedure to go and get to employ but i don't believe that the procedure here needs to be completely thrown out i don't believe under under the u s supreme court precedents and there are instructions under bigger we have to consider  features of that individual the clean cut nature enlarged muscular build the tattoo on his upper right shoulder upper right arm and the black the black were dark colors and top and the we take note of the individual that he saw let me ask you the following question this is an odd case i've never seen one with quite this issue if mr starr by god not been allowed to stay in the courtroom that the guy but instead it only been allowed to say well here's what i saw on that morning and here's the statement i gave to police that's saw but not making an argument of identification in the courtroom well that's a different harmless error analysis do we do the harmless error based upon simply subtracting from the trial the impermissible testimony or do we do what the trial would have looked like had permissible testimony been presented but of course it was not presented in that form how do we do a harmless get the full flavor of the pressure that he was put on mr or mrs dyer dying to clot deny that he was under pressure because he pointed out that he was the one who we who saw mr bolen from the get from was he was not in custody and mr stewart i thought he was in custody he asked when he when he was being driven home afterward i started after he said how did you get the gas i was asked he saw mr ball and being photographed being measured being you know for all  not be present so that's a very unlikely source of contamination the much more likely source is sloppy handling of the evidence that evidence does not tie mr bolen and no the final point that i want to make what's left and in this case i think the other usual thing is that not all of that is testimony offends the constitution so we don't have to take out his testimony about finding the victim for example