about both of those today but i'd like to start with the second issue of this case involved an incident at a gas station late at night yes stations last quick market gas and and was precipitated by a dispute between mckayla an ex boyfriend and his current girlfriend the police were called mikael ended up being placed under arrest as a result of that earlier incident but when she was placed under arrest she was taken down to the ground by the police had  knocked out ultimately she was charged with six offenses charge charges of resisting and aggravated battery only two convictions came out of those charges one aggravated battery and a lesser included of resisting so she stands currently just convicted of the active battery to one of the officers which alleged the kicking to that officer so this is a very serious matter as a court is also where from reviewing the briefs the story has two sides and there are two distinct sides in this case the police the law enforcement side of the story which says that the killer kicked the officer and then the side of the story that was testified to by mckayla and bystanders at the scene that said there was no caking sadly the best possible evidence of what actually occurred that night at the mart has been destroyed well we know videos were destroyed we know the police ordered the destruction of and he did not voluntarily turn it over the police didn't insist that he turn it over instead they told him he could turn it over or he could destroy it not wanting to turn over his phone in the complied with their order to discredit him to leave the video in fact his testimony was that an officer actually took his phone and deleted the video for him one way or another was deleted either at the direction of the police or actually by an officer and the officers admit that that they told bystanders to delete recordings that's not been disputed so without that evidence where we're left with you know a close case one side saying one thing and the other side saying the other and i wonder  six weeks after the arrest was made five months before the trial nack case and that was it was not pursuant to a normal police procedure that the evidence in that case was destroyed and the court there highlighted the center all that evidence would play  defense similar circumstances here although the destruction is even quicker and we have an on the scene destruction of evidence of what actually happened here at the direction of the police there is nothing to suggest that this was done pursuant to some normal  police procedure and it tonight everybody the opportunity to review it that the best possible evidence of what actually happened here you would sort of oh we're looking at  it's a motion to dismiss so whether whether the court abused the discretion to nine a motion to dismiss and then also raise a companion claim that counsel defense counsel is ineffective for not at least requesting an instruction for the jury that rule yet let's see what happens in the case if she's acquitted we don't ultimately need to rule on the motion to venerate motion is filed she's acquitted of some counts but not all the counts obviously and the court again continues out the motion and said well we'll deal with it at sentencing so the motion was actually heard and finally did not even after the trials was raised during the trial the written motion wasn't ruled on until after the trial there's not a motion label post trial motion  addressing this motion for new trial addressing it but it was addressed well after the trial and the state has argued forfeiture on the defense part because there is not a formal motion label motion for new trial discussing this issue we've talked about if the court finds forfeit it which i don't think is forfeited this was thoroughly preserved there's a timely objection in a written motion but it could be reviewed as plain error either because the evidence he close you know again one side says there was a kick in the other side says there was no kicking that's really the only dispute there are a number of witnesses that testified each so it's either close or it's fundamentally unfair i mean the destruction of an unbiased account of what happened between the parties in this case was destroyed at the direction of the police and that's funnily and fundamentally unfair to this defendant and she was denied the opportunity to use that evidence the state also based claims about how this was eavesdropping and so you know it was compliance with the eavesdropping statute to order that it be destroyed but the eavesdropping statute doesn't anywhere suggest that the police should order the destruction of evidence if it didn't comply as a score and i'm sure as well aware if eavesdropping statute has since then unconstitutionally overbroad and this is of a particular type of example that the court cited as to why it's evidence recorded in violation can be used in a trial but this could be useful in so many other ways even if we're not looking at admitting it at a trial it certainly could have been a great tool for investigation who was there who saw what what actually happened could have affected the charging decisions could affect the plea decision so it's useful for a lot of other reasons alternatively like i said counsel was ineffective for not requesting an instruction to the jury that the jury be instructed to construe that the missing evidence was against the state and that type of instruction was mentioned as having been given in youngblood it's was cited with approval by our first district appellate court in the danieli case the state hasn't offered any response to my argument on that point in their brief mispresent don't go back a minute to the eavesdropping still sure the supreme court declared that one constitutional correct in that decision means that it him correct so it doesn't help the police in this case not at this point not even certainly as it was argued at the time it was still in force but we're still this is still an open direct appeal so it would certainly apply in this case well except there wasn't all of a reason the police offered for why they instructed that the video speed deleted they certainly weren't acting to they thought it was fine that they were being recorded i think one of the officers touch on that first issue in the breach than counsel is also ineffective they are for not fully preserving the issue that was the jury indoctrination the questions asked by the prosecutor during and here in this case were certainly unique the prosecutor offered hypotheticals and asked journalists to opine on what their potential verdicts might be given a certain number of witnesses or amount of evidence  were asked you know if what if i brought you only one witness and one box of evidence you believe doll of it what would your verdict be jurors who responded guilty were told god or wonderful their their perspective verdicts were approved of by the prosecutor this was jerry indoctrination prosecutor was conditioning those jurors to kind of take an all or nothing approach and distorting the reasonable doubt standard in the process  as high alternatively this is a very serious error so it could be plainer under the second prong because this defendant was tonight fundamental fairness by this improper indoctrination by definition indoctrination is is persuading or or convincing a jury to believe one side of of beliefs without consideration of another so smith the type of questioning that went on here was that sort of indoctrination which by definition is fundamentally unfair in this case this error was reversed for we have a jury impaneled by you know questions that are indoctrinating them over to a certain set of beliefs which distorted the reasonable doubt standard in this case which really is well i think the jury was most apt to only if they disbelieve everything the state presented because that was the way the state set up those questions if you disbelieve all of our witnesses and evidence what are you not guilty but if you believe just one what were there thing you were only going to bring one witness so i'm asking if they only believe my witness you know do you think they convict the state knew this was going involve multiple witnesses multiple way this is for the state not just multiple witnesses between the state and the defense case but the state itself put on multiple witnesses three officers a dispatcher who was on a ride along and a nurse i believe so the stated five witnesses then ask the jurors you know what if you believe some or don't believe some that and ask you know to to balance those things but all or nothing if you disbelieve a mom he'll quit but if you believe one you wedding and you know you're asking people at your table well how many times of the couple kiss well you know you say it was three in another person says it was five another person says it was one what's the juror to believe can you tell how many times they test when jurors  you know under the state's hypothetical supposed to answer not without any consideration of well was the witness who said three more credible or the one he said five or the one he said one but just can you tell now but can you tell that they test from those and the the jurors were to respond yes that was what was approved of by the prosecutor during this for derek and leaving out any consideration of credibility the credibility would play a part and then maybe you could determine maybe you could still determine they didn't just all you know if you don't believe any of the people your table who are telling you this account you don't believe you know by extension the witnesses who testified you should find now but that was not not kind of an open question by the pr expressed some confusion during some of this questioning thank you rightfully cell again this is pretty i've not seen anything like this in almost fifteen years of reviewing cases  so by the prosecutor's responses he's telling jurors and not always questioning i mean being asked well can you tell us how many times they just you know and when there was some confusion kind of pushing on until they he got the jurors to say well no i can talk many but yes i can tell that yes you know that it actually stirs to think well if you know someone says something happened and someone else's of something a little different happened something still must have happened she still must have checked they're still must be a basis for this charge and natural really comes out of that sort of question and that's why it's improper together again it's plain air because while there was an objection defense counsel didn't follow it up in a motion for new trial as to the jury new trial either because i have counsel's failure to request missing evidence instruction after the the matter of the deleted videos was brought up or because of the jury indoctrination or the combination of how does one do a post trial motion claiming that the trial court made an error when the trial court has not ruled on that motion after the judge rules and sustained this was more than just and harassed maybe if this had just been an arrest and an allegation of kicking and he ended up with a bruise might be more compelling but this defendant was also taken down to the ground by the police officers by some accounts slammed to the ground by some accounts for at least two people testified her face bounced off the ground she loses two teeth in the process that part of it was a violent encounter between the police and  kayla the bruise could have come during that as well i think the bruises less compelling given that this wasn't just i put her under arrest she kicked me i put it back despite her there is this this encounter the nobody  minas physical evidence of that two or two teeth are laying on the ground her mouth is full of blood she ends up in the emergency room and needs i'm going down procedures to remedy that so the bruise could just as easily have come from that and the bruise is not enough to overcome an argument that this is a closely balanced case a couple other points i want to respond to your question of just as a rant about you don't really need the audio here you have the video if this  play the video there's nothing in that session this is they couldn't just need the audio and still use the video they can still use still shots from the video again also the video it doesn't just have to be useful for the in court trial but and it doesn't have to be shown that it was exculpatory so we can't show that because it's been destroyed that's why youngblood says well you can show it was destroyed in bad faith and we're going to say it's a due process violation and that's what happened here  officers didn't say they thought there was an eavesdropper violation happening here and that's why they ordered people to delete the videos they said we asked people to turn him over nobody would volunteer so we told him to delete the videos the officer one officer testified that even bother to ask these people for their names on you know even if they couldn't have collected the phones on the spot which they still may have been able to but even if they couldn't get the witnesses name and get a warrant to collect the video i mean there are ways that this could have been preserved  they were within reach of the process the prosecution this wouldn't have involved the officers going out and searching for evidence for the defendant this is known to have a tense it just it would have involved them not ordering people to delete and of what happened here given the circumstances i don't know why they would have wanted this deleted if it would have backed up what the police said why would they want people to delete this this case involved injury to the person they were arresting a violent injury to her if this would have backed up their side of the story would have wanted it and i would submit maybe they were concerned that it would not have backed up their side of the story so deleting  was the best possible thing for the state in the worst possible thing for my client that's a due process violation that this court should not condone touching just on the forty year and council's argument about it being invited  we're going to bring in multiple witnesses if you believe some of you don't believe others but it was if we bring you two witnesses and three boxes of evidence or some combination of that and you disbelieve everything we believe we present to you what do you deal that's where guilty answers came there was never a question of you know ok we bring you five witnesses which is what happened you know and you weigh their credibility and decide you know you believe some you don't believe others you know weigh the defense case what do you deal it was all or nothing i think you disbelieve everything we present you and then you find not guilty or you believe one and you find guilty so that they didn't ask questions along those lines again it's not invited they are defense counsel was acting to kind of