substantial right in this case the right being the right to cross examine witnesses and confront witnesses against you but at the new trial motion the best that was presented was that that that they therefore they may have known each other i was second to get us to the flame where they may have known each other yes because i believe that what happened in the situation is that the judge did not make did not make the always relevant and material so the judge in this case didn't exercise discretion well you know in greece is an interesting question because there are really up to two evidence in this case there's a credibility contest between this childress this testimony and the testimony of the defense witness this archer based on a fine of side evaluation of what exactly mr childress stopping putting a t that the state might very well want to push against the statement that i'm going to make that the testimony of the stillness was extremely crucial because she is the one on the only establish the error in the children's examination based on the lack of an offer proof yes and i believe that we can still get to the question of her testimony being the critical piece of evidence dealing with intent through the clean air examination it again she was the only witness that testified to the elements of  and if the jury should have heard if there was anybody else in order to balance her testimony with that as archer you said you were going to argue there are multiple issues raised yes you said you were going to argue three may i ask you what the other two are that you're going to focus on because i would like to know what are the other two the second issue i would like to talk about is the question of lesser included offenses giving the instruction and that's the third you want to discuss the third that i wanted to discuss  this was the only witness that testified to any issue of intent as childress was the only witness that said it was the only eyewitness and back to the actual crime yes was this a toyota yes it was it was it w yes i think the state would argue is that the witness list childress yes said and thank you she said that she saw the animal and then accelerate and then testimony of the reconstruction stooping later and said you can't see anything from where she said she was standing yes that goes to the ultimate issue of whether there was a crime at all yes to whether or not there should be a lesser included rios and that he was on the sidewalk at the time there handy an element of recklessness based on the fact that this is this incident occurred on the side but their position taken also that the was not an intentional or knowing hit or murder but it was more reckless behavior striking if it will that yes that then fell and hit his head on the ground with the statement is that because the statement didn't come in as part of the course of the police officers investigation the jury was left with an improper view that when mr that there's no completeness of the story where he makes the statements to the officer and identifies himself as not just some guy in a cab where he identifies himself as the person who was involved in the accident this argument that's been such ruled in favor of the state of motion and limited to keep out those statements are you going to comment how the state then in closing to use the same yes comment sort of or suggested that there was no claim that he made a call or did anything to help and yet argue to the teary yes he the additional issue with this statement is attorney mention that mr bowen's had not called nine one one which was incorrect his statement to the police when he arrived on the scene was i was involved in the accident i called nine one one there had been two nine one one calls to from mr bowen's and it also presents the improper suggestion in the jury's mind that mr bowen's did not call nine one one when he actually did  of a more personal nature on the part of the press i believe it was it wasn't misconduct for it because tactically the it would play a part yes it the characterization of the evidence was correct there was no evidence presented in the trial that mr bowen won however the state was aware that there were nine one  description that he didn't call nine one one if he simply said the record does does not show that anyone called me then you couldn't criticize even though i'm right we are personal basis why he was asking this question the judge would have known the relevance if any who would have known the basis well why wouldn't he know from this question that he was looking for an answer yes i did work with the conviction has been firm or reckless homicide or people running somebody over with a car that alone indicates that this is traditionally or has been a type of answer you have to bat at least as far as the question is concerned not as far as this position this position of the case but as far as that question this is what justice kagan i suggest that that would not prove recklessness that may very well be notes and this raises the second if for witnesses and ph is the jury obligated to take it all or leave  or could that be a basis for the jury believing the witness when she says she saw hit the deck but not believe the witness backing off first and he that you're saying that you've established intentional killing and knowing that doesn't answer the question of whether or not this same testimony can support a request  individual right now you have her saying that the car sped up so from there that will give you the right to the question is did the defendant have a right to have an instruction to the jury that this  how does that translate into his knowledge and in fact did it at the greeley jury there was no testimony about any any intent any knowledge we know you're not required to show motive but you don't even have t so the point is does he get the involuntary destruction when another witness says witness says i think i was not able to see at all what she claims she was able to see is there any evidence however slight to get the instruction before the jury these pants this isn't your typical shooting with a gun it's not a stabbing it's a car that pulled up on a sidewalk and kill someone is no evidence that would support it find a rational finding that he acted with anything other than intent or knowledge of or a deliberateness of the strike attempting to strike mr rios with  that's really not the issue and i'm not i hope i'm not making you think that it's not whether you have proof beyond a reasonable doubt it's whether an instruction on a lesser included offense or should have been given whether there was any evidence however slight work i don't want anyone to have the impression that we're somehow disregarding but we're not but this is where we would go if we would not accept the failure to make an offer of proof as as  a complete defense against the failure to will allow the impeach if it was where do you go with the statement of the prosecutor in closing argument that he didn't make the call which was in the face if she knew at the time that the prosecutor was going to later argue that he really did nothing you know to to call for assistance or eight when in fact he did call nine one one but how does that change anything that's i don't think i don't think that the prosecutor she has said that he really did nothing he just stood there like when in fact he had called and said i get in accidents i get this person i mean i don't think the well i mean i'm not saying that i would have allowed that statement but if if if i knew that a prosecutor was going to later argue he really didn't say anything all night one whatever the suggestion that he really stood there and did nothing to help i would not have ruled that that you can't say that none of this can come in when you're going to find and use it against that person later well think it's the defendant may have contradicted any claim of concern of calling nine one one i mean you know this is all this could all be part of his defense of attempting to present to the you know to the to the the thank you you survived this plane the final word as briefly as plain get into the credibility contest on the issue of intent which goes to the jury instructions for murder and robbery homicide what and why don't you take a look when your question what happens if you don't there is room for a lesser included offense because the jury could find based on the other evidence that there was a car driving on the sidewalk and it struck a fairly narrow words with well whatever they were arguing about he broke a pipe and i don't imagine the pipe contained ordinary tobacco well there was a toxicology report indicated that he had some trace of cocaine and it was their testimony that there was drinking at a party i believe that was