first degree murder of anthony parker mr pierce was convicted of murdering carter and subsequently sense the six years in prison based entirely on the testimony of three purported eyewitnesses there was no physical evidence there was no gun there were no fingerprints there was nothing else like you mr pierce to the shooting the testimony of those three witnesses particularly their credibility was therefore the central issue actually get two critical errors made by the trial both of which directly affected the credibility of those witnesses deprive mr pierce of a fair trial and therefore necessitate a new trial the state argues strout its grief that any error committed by the trial court affecting the credibility of those witnesses was irrelevant or harmless because you have a dance again against mr pearce again simply the testimony of those three witnesses was quote unquote overwhelming is a court sure is well aware from the briefing on the record however that's hardly the case i won't recount all the testimony again i know the court's from earlier with it but it's sufficient to say that none of the accounts of the trial from any of the witnesses mccullum wilson or cole were consistent the state's case rested entirely shaky credibility of those witnesses can be fairly characterized as irrelevant or heartless as the credibility of those witnesses was at the very heart of the state's case and fortunately we know that there were two c backing their credibility the first critical error made by the trial court concerns this its decision to exclude certain nine one one tapes made by bystanders within seconds of the shooting two of which what we refer to as the first and third calls in our brief described very much what sounds like a drive by shooting rather than the face to face on foot confrontation described by wilson and mccullough at trial columns the trial judge exclude the nine one one tapes court here say because he found that they didn't meet the excited utterance exception specifically he said that the callers were describing something that already occurred rather than something happening in the moment because it wasn't clear that the trial judge whether the callers were re to there's an absence of time for the victim to fabricate a statement and three the statement relates to circumstances of the parents here all three of those requirements were matters regarding the first occurrence of a startling event i don't think it's even arguable that a shooting in the middle of a crowded street is an objective least startling advance and the statement scribing such a shooting a mere thirty two at least one hundred twenty seconds later is for the greater mass obviously still made in the moment of excitement and that any of these people who made these others says that they see the shooting the third caller did your honor he described a drive by shooting he said that a car came down the by shooting how does how does the court know that this is a person who made this observation and was describing it if you're making this observation just by the i made this phone call i saw this heard even have another person say you know this person made this call in my view and he was excited i mean this have to be something other than just the phone go there doesn't  get the license number and and they would she describe the fact that they were there that's that's a that's not the situation that this is a situation where there's nobody on the witness stand there can place this can qualify under that standard as well didn't know each caller referred to separate circumstances that they allegedly viewed so how would the court to determine which ones are legit or not one describes people running down the street  several blocks away but the first call describes the caller heard the shooting and then saw a car take off from the scene the third call the stripes of a drive by shooting at the first call by itself might not be very crimes commission and the third caller described the shooting directly saying the caller observed what sounds like a drive by shooting people he feels which you alluded to your honor tells that statements describing the immediate aftermath of a crime including the flight of the perpetrator artist was excited and says there is simply no requirement in the law at mclaren to see the actual crime itself the shooting in this case for this but didn't get put again didn't the court make note of the fact in discussing the foundation the presence of and the perspective of those out of court the clearance the court did your honor but i believe that or call correctly if that statement was made with regard to the defendant's confrontation claus argument which is not it played here that there's no confrontation issue every question so we have these calls right i was the court able to determine from these calls the lack or absence of self was any self interest in the statements or honor however i believe that would be a question for the jury moving on to the second error that the trial court i believe it's more straightforward than the first but  not witness and was not at the scene of the shooting that contradicted a statement that he supposedly made to the police earlier that he was near the scene of the shooting and he saw the defendant running from the scene with a gun in his hand at trial hall testif that he didn't remember such an event and he didn't remember making any such statement but critically during the state's questioning of whole the trial judge unprompted in open court and in front of the jury said quote i want to spread of record i'm going to treat the i don't remember this from an evidentiary standpoint as indicative of a witness recalcitrant to answer the question and not an accurate representation of whether or not perhaps the trial judge was frustrated with all maybe he just wanted to move the questioning along but the judge just desire to manage his docket in that way doesn't trump mr pierce's right to a fair trial and by making that statement by saying that holds testimony should be treated from an evidentiary standpoint as an accurate by essentially calling called a liar in front of the jury the trial j inadvertently but surely prejudicially invaded the province of the jury this court was very clear and people feel brown that such comments i have trial judge constitute reversible error or prejudice is the probable i mean if you take calls testimony on the one hand it just it just says i didn't i was never i don't i didn't see it and then has this is one fifteen ten statement is you know the defendant did it so it's not like it's not an has recognized the reality that trial judge has immense influence over the jury that's what recognise that basic principle many many times in the law is there for very clear that every defendant is entitled to a trial free from improper prejudicial remarks is warranted it bears repeating your honor that this came this case came down entirely to the state's purported occurrence witnesses which statements at trial were inconsistent and whose statements were absolutely no used state at trial unless they as the shooter was also accurate it was tantamount to an instruction to convict under any standard including plain air that warrants a new trial especially if it's like this in a case this close with so little evidence i know the story is often confronted from all cases in which the testimony of unreliable and banners plays a part in a large part of the state's case but i was unable to find any case in which the testimony of the only testimony rather of the defendant's guilt was provided by such witnesses and the conviction was supported by a comment made by the trial judge affecting the credibility of those witnesses the damage and prejudice that comes from that kind of comment can't be undone it cannot be cured that bell cannot be on wrong mr pierce has a right to a fair trial he was denied that right jackson and i ask you to funny call them over from across the street asked if they were still hustling out there and threaten them with a gun when kenny carter approached defendant immediately pointed the gun at carter and fired nine times this question rule in favor of the people as conviction for first degree murder where the nine one one call recordings were not relevant and the trial for properly excluded the recordings as in a misapplied hearsay there were three nine one one calls that issue on appeal the first from an off duty police officer the second from a after these police officers stated that she did not see the shooting she heard shots fired and saw four boys running eastbound but and then saw a silver car take off in jackson she didn't say that any of those boys was the shooter she didn't say that any of those boys had a gun in their possession she didn't even say that any of those boys that were running got into the car that she saw when asked if she got a good enough you to provide a description she said no there simply was insufficient from that location alone he couldn't have been on view of the shooting he stated that he saw four male blacks fleeing the area and that the boys were running towards them he didn't say which struction they were running from and he didn't say that he saw any of those boys of the gone the boy seen running by both that excluded as it was not relevant and it also did not meet the requirements to qualify as an excited ut the defense counsel called the police officer who testified that there were a large number of people on the scene in the aftermath of the shooting the civilian car continuously use the pronoun we when answering  we just don't know what kind of car we just saw a car come down the alley we just don't know is unclear whether the unknown civilian was relating his own observation or if you are making that call on behalf of the group do you know if there was more than one car  a body on the street and he that's what he kept bringing the conversation back to the dispatcher is asking him questions about did you see the shooter no we didn't see it there's a body on the ground he can after i agree question that was related to him he kept bringing it back i mean that was obvious that he wasn't calling for the purpose of reporting what he had seen and it's i've been told and the prominence that he used and the fact that his what he was relating was inconsistent it was unclear the that to disregard his comment that it would have to say that the judge just common that what the court was saying was that he wasn't he was specifically saying he wasn't commenting on the credibility of the witness he was he was making a ruling anything that he says what the jury was fundamental importance of a fair trial and the practical difficulties involved in objecting to that conduct actual sprinkle was clear on that point people view brown was clear on that point moreover as i know the court is perfectly well aware waiver is a restriction same with regard to the supposed curative instruction from the judge it's important to emphasize that it was not that by any stretch of the imagination there was no curative instruction here the instruction given to the jury was taken directly from the i i and it was given long after the judge's comments on pulse credibility is given at the very end of the day churchwarden us to that or whether rather the judge error here should affect the outcome of this case i believe it should if this court says that a trial judge in a first degree murder case is permitted to comment on the credibility of a key state witness must not comment on the credibility of a witness in front of a jury will be meaningless if that is allowed and the defendant's right to a fair trial a fundamental constitutional right will have been dealt a crat blow i urge you not to start us down that path reversed mr pierce's conviction or her new trial and in so doing make it clear to lawyers trial judges and the public alike that criminal defendants right to a fair trial is still sacred in our system of justice