thank you good afternoon your honour's council may please the court karen smith alleged and arguable claim of ineffective assistance of counsel as per se post conviction petition and that is here in the first stage all testimony in this case was very significant but it was significant largely because the testimony of a second so woman named cynthia s word now ms s word the was a an employee which was a waitress at the side tap which was the bar that mr smith was accused of robbing miss s where he identified mr smith as the person who robbed that bar however when she identified him she did not identify him by the name jared cement she his face she identified him by his voice and she hadn't identified him as a person named troy who she had met the evening before have been the first time she'd ever met this person and she was introduced to this fellow named troy impact on the case against mr smith and it's significant on a couple of levels and the most the most obvious and the most clear level is that of course if mr bailey did not introduce mr smith to miss us worthy clearly a miss as worthy could not have been recognizing mr smith as a result of that introduction so her identification which was solely based on her remembrance of this person's voice and general bill from the evening before whomever that person was it's not jared smith bob a week comes in and says i don't know him i never introduced him that anyone so that is one of only two people who actually were able to identify mr smith as the robber and notably neither of them saw the robbers significant also for the reason however that it suggests some other things that impact some of the other witness identifications particularly the fact that it would appear at least based on the truck on the trial testimony we don't have there was no indication that miss us worthy knew were had some right against mr smith you would assume that is as the bailey testimony would imply this was a mistaken identification that it was a legitimately mistaken identification not a fabrication and that suggests that this is where lee was introduced to someone there was someone who she was identified and there was someone whose voice she recognized someone who had been in the bar the night before that person would then of course become a viable second suspect this is someone then that at least one witness present identified and vertically when we start looking at the identification testimony of the other witnesses we start to see how significant this is scott even was the other fellow who up identified mr smith as being present there in the bars the robbery again couldn't see his face he identified him just on bill and he identified him in the highly suggestive context of a one man police show smith is in custody the can is driven over he looks out he sees him ok that looks like the guy he said that looks like him from the waist up that's the guy i saw because of the robber i guess was behind the bar at the time s is this person that she met the night before that raises a serious question as to whether the other witnesses involved in this could have been in fact mistaken in their identifications particularly where you do have a suggestive context like show i there were a couple other witnesses who claim who saw a man running through some yards they didn't actually see the robbery some time in between the robbery and when mr smith was apprehended by the police these witnesses saw a man running through it was through several backyards that we've across the street and then continued on this was actually about recollection serves me just about two blocks from where he was ultimately apprehended now they did identify that person as smith although presumably they got fairly intimate look at him it was on that ronnie was moving on they also identify this person is carrying a gun and this is always been a significant hole in this case and a significant question because mr smith was arrested just a few minutes later and just a couple blocks away there was no gun six to seven police officers spent two hours searching the area where mr smith would have had he been the robber the area through which he would have passed in order to arrive it where he told him that he was no gun was our fucked up so that does certainly raise a question it could be these witnesses have in fact been viewing someone else what do we have a mistaken identification case here that was mr smith's testimony at trial that was his case at trial he maintained that he was walking from another direction he had been out of town the evening before he wasn't even around that night to be introduced at the bar  he was in champaign urbana for a concert and he testified i was walking and they all served first saw mr smith testified he wasn't running down the street or anything he was walking down the street and then he saw the police and became nervous because previous trouble he had and that led to him taking off the police pursuing him and arresting now in the face of these other identifications and in the face of no  second suspect that begins to look like a pretty questionable store or the possibility of that story in the possibility that these other witnesses could have been mistaken in their identifications increases significantly with this propose testimony from mr baker so when we're looking at the elements of at this point a first stage post convention petition and an allegation of ineffective assistance of counsel of course we are using the familiar hottest pass we are asking is it argu testimony regarding mr bailey he's obviously germane to the case so that that problem has not been contested where the real contest here has come as has come to pressure so the state maintains that the evidence was overwhelming in this case and therefore just based on that the claim should fail on the merits problem however again i think when you can only view this evidence as overwhelming if you few would outside of the impact that the bailey testimony could have on the rest of that if you if you look at it outside of the undercutting of the us where the identification if you look at it aside from the fact that the second identification from the bar was suggestive based on build not a strong identification certainly if you have someone who is similar enough in appearance similar enough in bill that he says where the could mistakenly identified  it would seem entirely logical and entirely possible that someone else could do the same and again we've always had holes in this case where the question where was the gun we have this mass was found somewhere nearby which the state pointed to as evidence mr smith still there's nothing connecting with the master mr smith they tested it they couldn't get any profiles they couldn't tie it to so we do have some fairly significant issues here and mr smith did give accounts for some of the other evidence there was stories of a glove there not looking at a case here where it would be where the evidence is so overwhelming that the first stage where all we're looking at is question is it arguable is it possible that somebody could make out this claim is it is it a reasonably arguable point at this stage yes we've got that much obviously there's investigation that still needs to be done this is this is what the second stage is for when we get an attorney on someone who can investigate these claims someone who can find out track down the witnesses and hopefully bring in some of it and at that point you can make a much firmer much firmer conclusion but at this point the question is really just is this claim indisputably parallel and based on what we have here the answer to that is no it's not the the facts alleged are not delusional they're not fantastic this isn't something that it's impossible to believe and the legal theory is sound the legal theory counsel could have called this witness the record bears that out counsel knew who the witness was i would know there was a fine by the court below the court who stated that it was undisputed that mr bailey was unavailable as a witness and apparently the court below in reaching that conclusion was drawn on a small bit of testimony from his us work in which she stated she had recently visited mr bailey in the hospital was very ill and as we were quite in our briefs and i won't belabor the point but a simply because a person is ill does not necessarily mean they're not on it to testify we don't have that kind of evidence in the record and second even if a person was unable to actually come into the court room that is not worth preclude counsel from going and getting an affidavit you can go and get testimony from the witness and get sworn testimony from the witness in the hospital and if that when this is in fact unavailable to come in then that affidavit is admissible so counsel had options to get this evidence and the record fail held that there are exceptions to that there are exceptions to the affidavit requirement where for example the record of the court file and everything else is sufficient unto itself present the claim there's also and that's noted for example in the case of see that it would be either extraordinarily difficult or impossible for the pro se defendant to get the affidavit that is required here then we can excuse the absence of that affidavit because obviously we don't want to we don't want to bar defendants from brain claims simply because of and parent difficulties in acquiring yet and this is really a case now all those cases did mostly deal with those two particular cases to deal with where the witness in question a was an attorney and particularly of the defendant's attorney who was in effect of this issue it was their affidavit sop however the court did not limit itself it did not simply say where it's an attorney's affidavit ok it's excuse the court said where it's readily apparent or where it's self apparent i believe was the word see was there would be extremely difficult or or impossible for the pro se defendant to acquire this affidavit then under those circumstances we can excuse number one and this case presents a really unusual situation where it would in fact be readily it is readily apparent that it would have been him politics well and the very least extremely difficult if not impossible for mr smith to acquire this affidavit for the simple reason that the whole sum and substance on the significance of his testimony is the fact that he doesn't know that he never met them and he doesn't have a phone number he doesn't have an address he has no means by which to track this person down at choir an affidavit from it simply under the circumstances it would be essentially impossible for him to go and track down this on the person all he's got is a name and acquire the necessary affidavit and i would also note that this is one of the things that makes this so highly unusual is that of course and really mean what we're asking for here is really very limited exception because in obviously be lacking grounds in this case however to be particular evidence in the particular testimony which is significant and it's important is precisely that fact i don't know i never met him he doesn't know me he's never met me that he doesn't know me and so this is really an unusual situation but it is one where we have to recognize that the defendant really has no it well again it would be a the at the best extremely difficult for he for him to acquire this affidavit from this on own person and therefore under the reasoning of cases like williams and hall this is a case where we can say you know what this is a time where this needs to proceed to the second stage where an attorney who actually has some ability to investigate and who actually has presumably some resources some knowledge of these sorts of things isn't incarcerated it can go knock on doors if need be where such a person can be put on the case and investigate and so for those reasons as we discussed in our previous we really do this is a circumstance where that narrow exception really could apply to allowed to allow the case to proceed forward to the second stage despite the absence so if there are no further questions i think at this point we would reserve some time for a bottle and thank you very much at trial it was testified to by sam fia elsewhere think that mr bailey was not was suffering from pancreatic counsel cancer and was in light of the defendant not being in that testimony not being presented defendant cannot establish that he was prejudiced the evidence was overwhelming that the defendant head no klein his claimed was not arguably based on fact our law there was many witnesses that was able to testify that someone when this is that glove wish tied defendant which was tied to defendant defendant had been seen by two witnesses running they saw him stumble and fall when he f further you also have the testimony of the officers who solved the defendant and at the time they saw the defendant he looked at them and started to run time he solved the defender was removing my knee found his pocket couldn't bear to think who was found to have the amount of money that was recovered was two thousand nine hundred eighty five dollars this was a well the defendant amid it bad he didn't have the money but that he had obtained this money from gambling and of the me he also attempted to explain that the gloves he admitted the glove that had his blood on it d n a that he had received head injury not from falling astounding but they had he had been there earlier and had helped a person that was cutting down trees to cutting down trees and best how he was and he also was not an effective for hauling not calling bob bailey as a the defendant alleged that his attorney had provided an update to assistance of counsel because the attorney had misrepresented to him what he would be sentenced to of this would have been the attorneys after day and that it was self evident that in these types of circumstances that the attorney would not that type of after day would there was no witness you could testify oh well there was you know there were twenty nine hundred dollars in the till that day nobody knew how much money was in the bar that so we don't know if the amount of money that was found and around you know mr smith matched the amount of money from the teller not we know generally how much money the bar usually had which is you know it's certainly central it has some value but it's not particularly strong as far as several of these other things i would like to address there was a reference that the directly you know mr smith stated that it came from gambling and other sources i wouldn't care to speculate on what those other sources might have been but there are ways in which individuals sometimes find themselves carrying large amounts of cash not always as a result of having just walked out of a bar with them so well it is you know and especially in light of the evidence as it was originally presented in the absence of mr bailey's testimony it causes some problems however it certainly does not stray into the realm of the fantastic or delusion i mean we're not talking about something that simply stretches belief beyond where it could possibly go and we are the first stage where we are really considering the question of is this article is it just or could this could there be something here if we continue to investigate and there was also her own in reference to some of the affidavit issues and regarding williams and paul i'm actually at one of the things that makes this case actually quite comparable boyens and holes as the state argued really the only affidavit mr smith could attach to his petition that would have supported his claim here he only affidavit that would incarcerated and lacks pretty freedom of movement could have gone out and found an individual that all he knows is his name and the general area that he lives i don't know if even knows he lives in danville you know as he was in danville  bailey was never was never addressed was never discussed there wasn't a trial court determination on that that was something that in the order of dismissing the first stage post convention petition that was a conclusion that the p c judge reach i think it may have been the same judge but it was not a part of the trial proceeding and as argued clearly even if the witness was not available to be brought into court it would have been possible to get that testimony by means of an evidentiary affidavit which is available on the supreme court  so that being said we would respectfully ask this court reverse the circuit court's determination dismissing mr smith's petition first stage and remand this case so some further proceedings can be had and this claim can be developed further