state has the power to great use of it to request use immunity and really there's there's very little fireman's there's just a basic threshold but it's still the stay still has to make a motion patent defense counsel law told the court that patent certainly ask st for legal advice as to whether or not she had to testify and then the record also reflects that right before she was supposed to testify she i think the record reflects she said she was are they said she was freaking out she was scared i mean isn't that enough for the determination that likely she might refuse to testify i don't know your honor because really there's no satisfy the requirements of the statue so are you saying that the record just reflect that a witness actually says on the record that he or she is not going to testify that's right ira and then what piece supports and information derived from the witness's testimony if the witness has refused or is likely to produce that it is on the basis of his or her privilege against self incrimination so that language is in the statute it's the court that's the whole purpose of it and the state never made that showing and that was come from objection that the state never made that showing so there was they did if they didn't make that threshold showing their requests for use immunity shouldn't it should be denied ok and then the court said are you going to testify and he said young going to testify he didn't say yes now that they're offering to use immunity because otherwise i was going to involve my th amendment privilege and it seems to me that the privilege is personal to the p i think that it's not objecting to unity necessarily being granted it's a down to two procedures not being followed before the immunity is granted and my she's pointing out the error of granting immunity cautioned her strongly that you know i don't know why you would do that because you're opening the door to the state using the same piece of evidence to bolster their witnesses credibility and according to cite that is in the court mind it was more bolstering that it was impeaching but the court did say that it could be used market yet the course said i have that i believe that the court said i can see where it might show bias but the core came definitely much more strongly and i don't know why you would use that because it definitely bolster problem is too is the court's ruling from what you know i can understand from what i understand was wrong because i'm trying to understand how the same piece of evidence that impeaches the credibility of a witness the same  the credibility of the witness counsel was inhibited from doing so and so then counsel couldn't argue in their closing argument you know actually what this shows is the state's done these with a fever and they are going to testify they have spend wanted to start out with a proportionate penalties argument and we lead you in a different direction if you'd like to take a couple minutes and make that argument now that would be fine your honor i do but i do have a habit because i am i have a thousand and eighteen i'm trying to right it is a signal that you know yes you can raise this claim but now that for the st time on appeal it's premature because we need an evidentiary hearing where the defendant should be able to i mean make a finding that it's premature the harris type challenge is premature in supply and so ran as a player in the play and so don't foreclose him from doing it later on exactly ok so then  some of the court statements were actually made where the judge asked process based upon them offering you a unity and your discussions with an attorney do you intend to testify and he said yes and also the port to but based on the fact that he said are you testifying with this agreement of immunity essentially that showed that she was likely to invoke in almost every case i can imagine the when the defendant really would have the state and be able to show crimes if it were of this because i want women to be the alternative you just asked the direct question i know you don't have to say are you going  to play the set because you can also find that the person was likely to plead the th which would be based on facts and the record circumstances and as was discussed during a conference argument there definitely were indications w to the standard of review that it should be applied and looking at this issue well i agree that it would be such a jury construction in terms of whether or not the issue of whether or not how much  say the defendant would have interest but the problem is that in this case you actually have some facts to show you that the court didn't make these findings so it's sort of the point that in other cases might not be the problem is if you're just then look at what would the brevity be there's no remedy in the statute books and especially in this case they've already testified so i don't know you can't do that  for most cases the defense isn't going to have much to say in that because there's no prejudice all that it would do is ask that question but it doesn't have to be an are you going to say i don't think you have to ask a witness are you lightly into means you're making an inference from all the factors the factors here were the state said this is how we got these witnesses to come in here and testify and he promised them unity so how would you ever show that they were and in this case they definitely don't think that it should be with respect to the issue of cross examination not some of the questions that justice ridges announced did the defendant preserve this issue part of their post trial motion on peach six o nine they actually made an allegation in a totally other context about depriving the defendant of affective communication as was totally other issue so when you got to this issue what they said is fortune to me these findings the court didn't and the reason for prejudice is because it restricted but they don't actually allege that they were improperly restricted and that's why i say it me and half of the state we would have that right to do that so the judge said i'm not letting the state front it but if you open that door then they can cross but the judge also said that not being flippant this is your the problem is if you look at the the types of bad acts that you're going to have asking the state to put into evidence now because it has to go back to the original passage of the statute you have to have at least one bad kings east side west side you know it's going to open up a lot and it's going to prejudice the defendant if we have to put these at it as an element in our case we certainly will but why would the state at that point it would have  through the the expert and so we were relying on that if anything it was an end you know a lack of foundation for the opinion which under the evidence rules they don't actually have to give the was when i would sit and worry if you look at the concurrent specifically discusses that as an insufficiency st day the argument that we're making now is not exactly raised or decided marie in my in my and in that case because they said we didn't have the two elements so if that i understand that that's required we are still in this case have the defendant himself admitting that he was indicating in effect wanting to rely on it is for me sensing issues but regardless we do think that if in the alternative in this case all of the evidence st was presented for the lesser included offense and so we would ask that if i'm considering them during factor the miller factors and discounting for that so it's it's essentially a moot point here because the judge said i consider all those miller factors if would have been over forty the crowd again is i don't i don't think you're going to end up applying to a twenty two year old because we also now have a new legislative  what point is that line and because at a certain point we all start the clock ticking and so i don't see how the line is never mentioned twenty two and in this case  cases which shows bad cop that you need more than the minimum here and the other thing is again if you are going to save us you also have to figure at what point then it declining and you're no longer able to sense because if the constitution requires rehabilitation not to get to certain people who can no longer be a delicate rehabilitative because they're already past the like that's that's the problem there  actually went to court had said was that if it's going to be the court's ruling that we would have to figure out a way to do that and you know their only concern was the manner or the way case what had happened was it was presented were jack to the states that while the point going to say that we will figure out a way to do it but it's not going to be easy on and then and mediately the judge went into i find this is a list of all cited she cases explain why it was coming in the state never had to you or even if it never became an issue for the state to read and i agree other than just saying well if the court's going to order us to do that yes after the fact that mr owen went away ok i'll tell you now now now the real thing if you want to hear what really happened and it was building and as counsel says you know your venture only admitted well we have to see why immunity is not any type of benefit to them given to by the state and that's it's worse with patterns testimony because before it's really you know this unfounded restriction that if you open you impeach you open the door to use immunity  twenty one they say you know you have the opportunity to raise this issue as an emerging adult in a post conviction proceeding but interestingly there's actually a case pending in the allies who are now where the