your honors made it please the court i be sleepy fundamental issue in this case which was raised in appeal is ineffective assistance of counsel and i think you that i marry issue and the first one that i mentioned was the cross examination of brief the following facts were not even mentioned that jones was arrested running out the back door bare chested that the blue and white shirt was found in the apartment was that it was had been i d d is the shirt that sergeant medina saw the defendant wearing as he fled in the red car with the engine on the car was one according to sergeant medina that the identification by priest was not a long distance with what happened when he was when the defendant according to him came up to him and that he was immediately identified as a bird a name that he admitted to be known by and for identified  to the police immediately upon their arrival all of those things are important facts about whether this sheree jackson was indeed a key cooperative witness and if we get to the second prong of strickland whether or not that makes a difference in the context this case so i'll just say that one when i read briefs and i find out key facts only in the apple lead brief it doesn't do wonders for the either the credibility of the attorney or the credibility of the argument which they are making while judge i'm certain that trying to hide evidence from the court the record speaks for itself and not know to do so so i've my argument still i am aware of those  facts and i still believe that your rejection was a key property witness in the case even accepting that those facts are part of the record in this case there are certain circumstantial evidence which ties the defendant to the scene but they don't put a gun in the defendant's hand nor do they provide a third party admission of his being involved in the suspects and so because we have that i present it to the court between the attorney for the defendant a trial and state raises the issue of well you can't really speculate in terms of you know what was said between counsel and mr jackson but i believe that clearly counsel would not avail the witness the questions that were asked had that witness jackson said something said the same thing that she had told him there would be no reason to ask those questions in addition counsel indicated and it's also in the alibi that supported i believe on page sixteen of my room that he was surprised by the answer that mr jackson gave in the only inference it's not speculation i think the only inference that can be drawn is that mr jackson had told counsel that she did not seem to defendant with a gun and that she had not heard of say i had shot and and you know everybody here has tried a lot of cases and in any case where your defense counsel obviously you're hoping that the significant corroboration and identification case is lacking and when you're the prosecutor and i do not see that there was any trial strategy or reason for counsel to pass up on that opportunity to do cross examination of this witness the state mentions or argues that my client acquiesced and the decision when it's announced the court you know mr counsel said you know we've talked to mr jones about this and this is how we're going to proceed in the cases that are cited by the state such as for example anderson those but the only difference in this case would be not in the the acquiescence because the court inquiry would move reveal any other kind of an answer even according to the client's affidavit question of whether it was fully discussed and in your definition of fully discussed really because there's no denial that it was that that it was discussed well i just did the denials from my class from the petition would be but it's our position in this case given the facts of the case that the impact would have been significant especially given it was just  which indicates it's their trial strategy to hope that this witness these witnesses don't appear but at the best what you're having is something where these people if they are called they're going to have contradictory statements under oath or contradictory statements statements which contradict the testimony which was proffered i understand about my fears my my position on that charge is that the first the first promised by the date of these two individuals they weren't even interviewed by the fence counts as i don't know how to make an evaluation in a murder case of when you're going to call a witness or nap when you don't ever put it even if you're right that it wasn't a trial strategy under those circumstances it's a who cares situation isn't it because what they had to the case is contradictory statements it with established if nothing else but they told two different stories about a murder case on two different occasions so i don't i don't see it in that in the same way judge and here's the reason i mean the  signed affidavit saying that they were i witnesses to the defense alibi and even given the fact that they would have potentially been impeached with their statements to the police still they had something to mentioned or forgot to mention in the faxed the two police officers that identified him in the red car then you've got the red car then you've got the checkered shirt wrong red car yeah and you know so in addition you here because i think the evidence has is you know over well in terms of i mean you do have these other officers too and the case he leaves at the time that they're arresting him to he's running out the back door without turning so that's just another layer charge i understand but you know from my standpoint where i am right now yeah maybe b when you're trying a case the corroboration of somebody saying that they saw your point with a gun and he admitted committing a sure thing in an alibi case where two of your alibis you put there are and they're your people and your own interview on me to me i have to argue that that a mouse to prejudice in this case otherwise yeah we have i wouldn't beat i shouldn't be on the final thing i wanted to say was that i'm not going to argue all points that i raised that tying into the alibi i was in this is not in and of itself an effective assistance of counsel but i wanted it read in terms in the context of the failure to call the alibi witnesses in addition to the failure to impeach sheree jackson was the the manner in which the alibi was presented to the co in terms of and i know this happens people get busy and things happen but filing in l a notice two days after the trial started as i said help me understand your argument mr rask about how this does unstated visceral reaction that you imply that a judge might have to something that is raised late as opposed to something that is filed early or is or something more well there is something more though i did put that in the brief and i certainly don't expect the court to act on you know whether one could speculate how judge serie a necessarily was affected by by the presentation though i will say that it's common sense i don't think i've never been a judge but if i was a judge and somebody presented an alibi defense two days after your trial started i'd have to i have to raise an eyebrow in terms of the credibility of fs but the more important point i think is just the overall strategy in the manner in which the case was conducted it did not appear that the reason that i raised as well as the issue of reserving opening statement not knowing the alibi witnesses because it is i believe one can draw the inference they were not prepared to try to said well you know it's interesting in the context that you raised that because as you had intimated in your poet cui with justice mcbride you deal with what you have as a lawyer and as you look at it now was there a screening we affect if the families that they would want to commit themselves to in an opening open and in but in a case obviously you have to notice that you have to provide all those witnesses are so you have your alibi witnesses right who all three of them if they actually testified to what the best case scenario of their testimony will be at three of them will be impeached and you know back truck and so is it something that is not  that there are reasons sometimes people say something in a police station that they don't testify the way to run for it and i just don't think you were bandon pursuing an alibi when there were the people who work for you if you're going to present evidence there are out at midnight ok he left with the defendant at midnight right get cigarettes and then he left again and three and then at the original trial the defendant testified that he left it one day so i was correct he testified your honour's with respect to the issue of sri jansen the defendant's entire argument is based on assumptions that are not supported by the record there is absolutely no affirmative showing that should reset anything inconsistent or different to the such ernie but isn't it reasonable to assume i like to point out one of the things that defense counsel said here which is that the only inference to be drawn from his statement that she was surprised that he was surprised which is the only thing he has to argue that's one heck of an inference to jump to but if you're arguing that really the record doesn't support it that's a bad feed into the argument that we have for example in mckeel that you have a circumstance where there's information outside the record that's necessary the defendant wasn't on the phone call to to mr jackson it would be very unusual set of circumstances if it were he to be present so it would be neatly within the information o the defense attorney it would be something that should be in an affidavit you're right the knowledge in the affidavit of the attorney and in the absence of that and if the defendant was not able to obtain one because the allegation is ineffective assistance his duty inconsistent with what she said on the stand to the attorney what you have here is gamesmanship it was a good trial strategy assuming this happened assuming she said something inconsistent that he would have been required to disclose that to the state he chose not to do so instead he hoped to stand back the state actually and take us by surprise he figured she would say something inconsistent on the stand and wouldn't have to prove it up but then the impeachment up that it didn't happen for him and even if shari'a on the stand didn't say anything inconsistent which is what she did a trial then the attorney knew he could still choose not to prove it up the end to a chinese not one defense attorney but two co counsel on this case so it would have been very easy for one of them to become a witness but these two attorneys together determined that that impeachment was not necessary they had legit i'm a trial strategery especially where even without proving it i took what you're left with  the impression of the suggestion that there's something inconsistent out there and she had already been impeached on these points so you have the attorney remaining on the case as an attorney you have the suggestion that something inconsistent happened out there that's a win win for the defense and counsel mentioned that you have the sworn affidavit from the defendant but as the caseload represents and stands and even the statute that's one verification doesn't substitute for an actual affidavit from the defendant supporting this claim the defendant cases vera skinner and congress are as the sting was shabelle from the ones here in those cases clear cut evidence existed with which to impeach the eyewitness and the attorneys failed completely fail to impeach those eyewitnesses i critical point here there's no evidence demonstrating how this attorney would have impeached or and jackson was not an eye witness and the attorney did not fail to impeach or and the defendant agreed not to call the attorney as a witness after having it fully discussed with him that's what the record says as for the conversation over the phone whether or not that should have happened or in person should we probably didn't want to talk to that attorney in person and it might not have been safe for her to do so and as your honor mention there's no prejudice here there was more than sufficient evidence to convict we presented two eyewitnesses from the state lance had known the defendant for four years he identified his face pritchett rally pritchett corroborated that idea with a clothing description and a physical description there were two police officers conscience not the only one to place him outside the apartment at the time of the shooting and his statement that he shot him zero is not exactly a confession he's also overstates the importance of what that attorney's testimony would have been it would not have been significant it would have been impeachment not substantive evidence so it certainly cannot be ineffective assistance of counsel to not impeach retracts then was something that didn't exist and even if impeachment did exist it was a strategic decision not to it can not it cannot be ineffective assistance for a defense attorney to not interview a state witness who were the state witnesses who were both under state subpoena where the state sent besta gators out to arrest them and bring them to court for testimony test when their statements to the police and manson's handwritten statement contradict his alibi defense it's completely proper for a trial attorney to make a strategic decision to not interview witnesses although i would think that clearly it's best practice we're talking about the you may be overstating the case i think you probably always want to know what the witnesses are going to say it's best practice to do it the question is whether under the precedent that we have here it's ineffective assistance not not to do it not in this case because you have to look at what the value of the testimony would be and what they knew from the trial record from the police reports and everything but you don't know what the testimony is going to be until benefit his client these these witnesses basically did what they could to help the defendant they didn't show up at trial so they couldn't testify against them and they provided post trial affidavits trying to  but again there is no prejudice that's the hurdle here for the defendant and direct appeal this court stated that the trial court is not obligated to accept alibi testimony over a positive identification of the accused and the trial attorney does not have to accept those affidavits s true if it's inconsistent with the trial record so it's certainly not going to be ineffective assistance of counsel for to not interview or call lester and manson as witnesses they would have done more harm than good and with respect to the way that the attorneys prevented this alibi defense they did everything that they could they presented everything that they have not they called the stand for manson mantids who said that the defendant was with her at the time of the shooting and that the defendant didn't have a gun they called the defendant who said i was with mathis and i didn't have a gun and then they called robert burke the expert testified that the defendant didn't have g s r in his hands they cross examined all the witnesses they impeached all the witnesses really the attorneys did a commendable job especially given what they had of what they were presented with the fact that they reserved opening statement very good trial strategy it allowed them to refocus the trial court's attention on what was important to the defense especially since it was a bench trial that if they commenced to continue to a few times honor pointed out it allowed them to keep their options open as for the late filing of the alibi defense again where's the prejudice the defend it was not prevented from presenting any evidence or argument and his alibi