that statement could have been a reference not to mr klock silence but rob up to the state to the defense counsel's statement but that is simply incorrect decision and buckler is a good example of what a statement by a prosecutor referencing  from this table over here regarding a statement manapul to at least a couple of different instructions not with respect your honor i don't think that's the case i think a number of this court's decisions demonstrate what an indirect comment on defendant the only way facts could be introduced about that interview was from the defendant and i would say one of the things the district court apparently found probity and was this notion that perhaps this was a comment on the fact that mr cox defense attorney introducing facts into a case comes from a defense counsel introducing facts comes from a witness the only witness the only witness that could have provided those tanks was mr klock a s a kelly had already testified and that's why i simply don't think it's correct to say prohibition of course and and it's not amenable to an understanding that this was in fact a reference to mr clarke's attorney particularly given the context of these statements the second area in which the state prosecutor vi silence alone wasn't enough to make this case so we have to go to the next stage which is to say look at the physical actions mr klock took and i think what's prejudicial here what's critically prejudicial is a prosecutor out with the  can it would be a different case if the prosecutor said to the jury look you are members of the public how do you normally act getting into the front seat of a cop that could well signal affirmation but he didn't choose to say that i think it's because he recognized that wouldn't be enough i see my time is  up there was no alibi evidence at trial and call any witnesses at all so there was no alibi true but there was a mention of an alibi and as a kelly's testimony about the changing statements that petitioner gave and then that in that testimony he did say and he couldn't do it because that finding is well supported by the record first the comment was made in the context of a discussion about usa kelly's testimony about the and after the prosecutor was interrupted he took up the argument again i think it's fair comment to to reference to the defense not contradicting the avenue and it's and it's you have to give some deference to the trial judge you're in there and heard all the arguments together and heard the explanation from the state's attorney and specifically credit and said counsel was making a point about you know these statements were damaging and the and there there is some confusion about the fact that he says back to want to talk about facts i think that's not really a reference to anything particular gets interrupted and he jumps back in and he just kind of calls out facts because that's something the defense counsel had mentioned in his argument but it's really just it's not a comment on anything in particular just the statements were important part of to set up an argument that the minor witnesses are going to be wrong about the date so he says ray kelly i'm paraphrasing a little bit here he says or wait you know states training kelly actually i want to talk to you know i remember now i have a new job because i find their future and that i was near the instructions so there's no prejudice for that reason and the other reason there is no predators at the comment went to an issue that just wasn't significant the prosecutor made this comment about her against her disciples operate in response to defense counsel's argument and i'm paraphrasing here but essentially defense counsel said you know we heard a lot of evidence about amos chairs laying out the plans but we didn't hear anything about petitioner saying yes i would like to come down that robbery so he's making the point you know there's no verbal principal on the robbery the testimony of turn around and puts him in the bunker where the crimes are committed she talks about all the voices she hears and by process of elimination we know it's been to spain they know where it's at they know where it's at when they're trying to get the