-- all of the physical evidence in this case that relates to the robbery, the bank deposit slip, nfl oney, the bank deposit -- envelope and a piece of pabe in smith's hand writing toting up the deposits were all found in smith's pozzession. though it's not this court's normal responsible to decide if something was harmless, i think if there were a me -- remand on this count it ought to be remanded to the state court not only to determine constitutional harmlessness but whether there ways waiver by the state in its deliberate choice never to mention this either to the second sentencing jury or after. >> mr. waxman am i understanding the case properly? e informant who had all of the physical evidence was the main identifier of the definite, correct? -- defendant, correct? >> correct. there was an eyewitness from across the street who testified he saw somebody go into popeyes and he positively identified the defendant. i believe there was another cooperator who backed up smith's testimony. >> so the defendant claimed, however, that this informant was the one who did the claim -- crime. cot j