to have people arguing to the jury about the tape recording was when it was not in evidence however it looked to me until the defense started it and i wonder if they open the door honor i think that the prosecution is the one that first brought this conversation about which they're going to end in a suit was in court testimony prior to that in her in the first part of her closing argument starts to tell the jury about this conversation and we know that cooper the only telephone call she specifically gave testimony about would be february twenty fifth calls which had been tape of the top scholars so that she has to be talking about that conversation and so she tells the jury you know she's trying to bolster hoopers credibility at this time and she's saying hooper didn't want to get into this he called her from the jail up a week before trial he called her from the jail and told her to lie and we know the fourth of them were in fact in custody a week before trial because that couldn't have been true and and that in fact if you read the transcript of the actual conversation that he was telling her just the opposite in that conversation so i think it's the prosecution that began talking beyond the evidence reporter's transcript page it's two eighty three to two eighty four three in there saying there's nothing in mr ball or relevant on that tape that's why you didn't hear it she's telling the jury and then she says if there was something on that tape then something the super said i guarantee you you would have heard it  was the prior reference then when she when she's talking to that tape in her in the first part of her closing argument she talked about a telephone conversation that she says to her gave testimony about how we know that the only particular conversation who gave testimony about was the february twenty fifth conversation and i believe that the state concedes that they characterized it as mistaking i characterized it as deliberately taking advantage of the fact that this jury hadn't heard the tape recording but i mean i'm trying to get the first reference to the tape you see it's on two eighty three and two eighty four that tape will now bring out in his cross examination that mr cooper and detective bell chamber that i take have probably been there and so the first reference to the tape was really by the defense he brought that out  he reminded the jury you've heard different testimony about this conversation you've never heard the tape so i believe that he did if you were part of the tape if there was a taste for it he didn't describe the contents of the tape at all and the other she was doing was responding to the defense argument something has been hidden from me the state and she saying there's nothing on it that's relevant right well  actually yes she does she goes on to say she says it was like it was kept out on relevance and hearsay grounds which it wasn't actually kept out on relevance grounds and then she says he said tell them where what was on the tape whereas of course if we had the transcript of the tape he's telling he starts by saying don't tell them so i'm full just tell them if in fact tell them the truth i don't have anything to do the opposite is true so that given especially that the trial judge came along and let's say you're right on that why would it matter it seems like when they come in and spend all those  clearly those were hot tap dollars but who who first got them were they just caught by this couple and one member of this couple from someone else we don't know and what he colleague on that tape as far as we know mr meade never said tell the truth all we know from the tape and the record is a representation of what's on that tape by defense counsel when he was making his initial motions to play a portion of the tape and look you have a choice whenever you have direct evidence coming and you can object and maybe succeed and then have your adversary have point to the evidence that isn't there or you can let it in and deal with  it i generally generally would agree with your honor except in this case with defense counsel that are fifty to seventy eight before the reference given by my colleague in the prosecutor at r t to seventy eight in defense closing once counsel says well you've heard about this tape but we don't have that tape we don't have that tape and that's too bad and the prosecutor i think heard those words we don't have that tape and felt like the defense counsel was insinuating that there had been some withholding abandons when in fact there was not explain about the only evidence that there was admitted at this trial about the tape and that was ms hoopers testimony and so the prosecutor recounts that testimony she told you what was on that tape if you look at r t i think it's about page one twenty five that's  testimony she's saying yeah there's this call that i taped somehow got taped on february twenty fifth and on that tape he said tell them where you got those pep dollars and i told him i got them from you know i hung up and that's exactly what the prosecutor are good grounds for keeping it out of jail phone call in new is being recorded it's just sort of making a record but once the prosecutor succeeds in keeping it out i don't get how they can tell the jury what's on it well two two responses going on one prosecutors are what was responsive to the defense counsel mentioning the tape that already been excluded jury what's on the tape and that goes to my second response the prosecutor didn't tell the jury what was on the tape but the prosecutor said is here's what we know about the what is on the tape because we don't have everybody agrees nobody heard the tape the only evidence we have is miss hooper and miss hooper says here's what's on the tape he tells me to tell him where you got the pep dollars and i said to him i got in from you click on that and that's what the prosecutor says so it's perfectly permissible for the prosecutor to argue about the evidence that is properly admitted  honor well at one point before he was making a record to protect himself he probably told her to lie and at another point when he called from the jail and was trying to improve this case he probably told her to tell the truth just as  the defense attorney said without contradiction to the charge when they were discussing whether to admit it and the implication of her testimony is that when he called her and it was ta he told her to lie but that's false testimony if i got this right to get mixed up i think i think you do have it incorrect your honor and here is why i think your assumption that he told the truth on the on the tape told her to tell the truth is entirely unsupported by the evidence what we have we don't have evidence of what right now but we do have defense counsel's representation of the trial court of what's on the tape and then minutes later his concession to the trial court yeah there's nothing on the tape that is inconsistent with mr hooper's testimony where in her testimony continuous instances where she said he told me to lie now if there is so if there's anything on the tape where he says no tell the truth that would clearly be inconsistent and y u know that depends counsel conceded that nothing like that existed so especially to speculate that there's something on the tape or he says tell the truth is entirely unwarranted what we do know in terms of the witness today on the call from the jail one thirty three one thirty four she clarified is no no on the february twenty first call that was not one of the times he told me to lie he said on that call just tell them where you got it and i said i got them from and so there's nothing in the record to support the idea that he says anything close to the verbiage i want you to tell them the truth when he says just tell them where you got them a clearance prudence from that would be like i previously told you telling your bottom off the claim just like it applies to any other claim of constitutional error and to the extent that's still an open question in this court i i would urge that this court to put that question to rest there's no difference between not claiming any other claim says we have no information about what's on the tape except what defense counsel says was on the tape as though that's not evidence of what was on the tape the prosecutor hearing on that in federal court if there had to be i mean as far as what the defense lawyer raised in his closing argument i don't agree that he she made an implication that the taste of been improperly destroyed but if she did and the prosecutor said there's no evidence it was improperly destroyed that's quite a different thing from telling the jury what's on the tape and the last point i want to make is that we do have argument here's what was on the tape the prosecutor is vouching for miss who first testimony and saying i represent the government i you can trust me and i'm telling you what's on the tape and then the judge actually