good morning your honor good morning my name is rachel constrained i'm from the office of the state of public defender and i represent the appellant roscoe w trial well for trial which is at issue in this case is entitled disclosure to the accused and it requires that the state upon receiving notice of any defenses that the defendant intends to raise a trial that the witness my hearing is that they didn't comply with the terms of the rule they didn't disclose a specific statement as to what the substance of her testimony with the interest be only thing they didn't say is in terms of her testimony  we're the defendant was standing where his hands were placed was like the crux of what your complaint is that he didn't say exactly where his hands were placed or or his stance at the time he was firing the the state that the rule requires that when a state receives to notice of any defense that the defendant intends to raise within seven days of trial they're supposed to disclose a rebuttal witness and a specifics even as to their testimony now to feet would have made a good witness against woods a self defense claim whether or not woods testified i need to cut her testimony was said she saw the shooter turn around and fire of god now this this tended to negate any claim of self defense he turned around he aimed and fired so certain whether or not he disclosed it in their initial disclosures or not they were still required to comply with the part of the rule which requires police had interviewed her as a witness in the case and that she had claimed to seeing a shooting i don't think there was anything specific and again even if they came up testified he told the police she saw a black male running past her store state what would be the point of having other part of the rule then this the state could say any time any time that this issue came up well you know we disclosed it initially to defense counsel so whether or not intent to collar until after we heard the words testify the problem with that again is the text of the rule the world clearly says within seven days of trial upon receiving notice of the defendant's defenses they have to disclose a rebuttal witness the specific statement of their testimony i don't know what the point would be of having that seventy time limit in there if they could say and where are we going from the intent to color until after we heard what the defense were going to be in the record points to  jury testimony where he described the shooting and then we had officer coleman who is officer tribunal's partner so to speak was a good witness regardless she was an independent witness a religious owner of a religious store and she was able to describe the way the shooting took place in a manner that without counsel clearly a trial because he objected to this was completely unaware now judge saks decided this wasn't a discovery you can say and and be genuine to the text of the rule that because they disclosed initially and obviously didn't do provide a specific statement as to what she was going to testify to that they somehow complied with the latter part and i think even the fagging going back to justice harris's point i think even the fact that you know the prosecutor number one agreed to stipulate after the fact that that this witness had never told the police that she saw the position of the shooter is indicat e of the state's acknowledgement that this was going to be a rebuttal witness and number two i again going back to your point about the prejudice i think it was an independent witness the other two witnesses either  you know had it were were it was the partner of the victim in this case you know the prosecutor was able to refer to this in closing argument it was one of the last pieces of evidence that the jury heard none of the firearms  the evidence on woods's defense of self defense was close i mean the description of of the way this shooting took place was that woods was approached by individuals who  were likely members of a gang that had been involved in a shooting involving his cousin a month earlier that there had been an altercation at the bus stop that he was running away and that you know even  the police officers in this case testified as to my client they were game signs being thrown up and that he was fearful and he testified that he was fearful and you know when this case came down to his version of how the shooting took place which was that he was  by people he saw an individual make a gang symbol and standing on one of the corners near the incident with a gun and that he fired the gun you know behind him without a intention to hurt anybody but but nonetheless put his arm behind his back and fired a gun and you have a religious store owner coming up in testifying immediately after his testimony and that the state simply had to know that her testimony was going to be great in rebuttal because they had her at the ready rebuttal there's not there's nothing in that rule that says that that initial disclosure was compliance with the rebuttal portion and the entire the entire point of these discovery rules is to avoid unfair surprise and clearly defense counsel was surprised by what her testimony was going to be because the prosecutor decided to tell him right before he called her what she was going to testify to piece of the the position of the shooter that was any objection that they at the beginning of her testimony  'm sure i did want to touch briefly on the other accidents again my argument was twofold it was that it was not relevant i don't think i don't think testimony tended to show any facts relevant to the shooting intended to prove any and in fact relevant to the shooting the the gun the description of the gun that germ described for the court in the jury at trial was a silver gun kenyan tailor who will i think you could determine whether or not that act was was relevant as to whether judge sachs mean the appropriate ruling in allowing to allowing the you haven't it's come in i think you would review that under an abuse of discretion standard in my point here is engage in the proper balance and test and determine whether this evidence should come at all i mean he has his point was and i and you know i think i quoted it and in the opening brief was that you know what if any evidence listed miss rosalynn a tough week as an occurrence witness somebody who had viewed the shooting we provided her name we provided her address we gave defense counsel all of the police reports reflecting the statements that she had provided to police five days before trial defense counsel filed his answer to discovery raising two affirmative defenses all that he said in that answer was that he might race defense of others and the ceci there was no further information i'm not suggesting that defense counsel had to tell us exactly what the facts were going to be underlying those defenses but the fact that it wasn't included in that answer means that we had no idea what the defense was actually going to be factually and although defense counsel suggests that that answer provided us with sufficient information to into it yes the view was whether or not the defendant was running when he was running away or whether he was actually you know knowingly firing the state must of known that how the defendant was positioned and what he was doing when he  would become very important in this case not true your honor and the reason is because all that the state knew before trial with the defendant had provided an answer to the police wherein he provided a confession or not a confession the statement to police after his arrest where he said to police i didn't have a gun i didn't i didn't have a gun i didn't do any shooting i heard some shots i heard that a police officer might have been shot but i didn't shoot the state also had information from its witnesses that the shooter matched the description of defendant the shooter was named new which was defendant's nickname in the gang i'm on others and the state also had information from both the officer who who was one of the people being shot at had information from him in addition to defendant's own cousin torrey davis who provided a grand jury statement and a written statement during the investigation shortly after the shooting the state knew that both of those witnesses said the defendant stopped turned and fired now with this information the state would have no idea that defendant would simply counter that with an opposite version particularly sense and i think defense counsel kind of glosses over this we have physical evidence in this case we know where those casings were found they were found between two addresses they weren't found spread out along the street as if somebody was shooting and the cartridges were ejected as they were running so there was no way the physical evidence our witnesses there was no way we would know the defendant would take the stand and come up with this story about shooting behind him it contradicted everything that we knew about the case and in fact prior to trial if i could remind this court during voir dear defense counsel had asked the judge just specific lee ask the potential jurors if they understood the principle that defend it wasn't required to take the stand so even at that point we weren't sure that when i was even going to take the stand and likewise if we take a look at defendant's defense counsel's opening statement in this trial he mentioned nothing about defendant taking the stand he mentioned nothing about a counter version of events about how the shooter stood in fact all the defense counsel said was yes make an argument because it wasn't because the the description of how absolutely absolutely i wasn't your honor when i looked at the defendant's appellate argument i wasn't sure and in fact if we take a look at defense counsel's argument below we kind of see how it's changed a little bit from trial to it to appeal at trial defense counsel said i didn't get her statement to the assistant state's attorney in writing they didn't put that in writing so i had to remind counsel in the court that rule thirty twelve does not require the state to reduce to writing every witness a statement that is absolutely bedrock a principle that has been said multiple times by this court in this room court and having reminded the court of that princip which is directly counter to what trial counsel raised a low the next question arises whether we have to do something similar for witnesses whom we call in rebuttal and the answer to that is next of course no and if i could also just touch on the purpose of this rebuttal paragraph that rebuttal paragraph by its own terms really addresses only those witnesses that we discover after we look at the defendant's answer and witnesses that we haven't previously disclosed to the defense that's why it requires us to give the name the address any of the other required discovery pursuant to rule a in the predecessor subsections and then of course the statement the defendant is focusing on there would be no reason for us to have to provide that information if we had already provided the information about this witness earlier in discovery because as your honor said pointed out defense counsel could easily have spoken to this witness she was a local store owner she'd had that store for twenty years she was available to the defense and while i do not know nor i do i think a public counsel knows whether or not counsel even spoke to her there's a likelihood that counsel did speak to her that was well aware of it because remember trial counsel's objection below only went to i didn't get her statement in writing from the state i didn't get that testimony that she's going to give that the state just told me about i didn't get that in writing in my papers there is a companion law to this rule and that companion law is that the duty to disclose rebuttal witnesses does not arise until the intent to call those witnesses comes about defending rounds that because to recognize that principle is to actually find that we completely complied with discovery in this case as soon as defendant took the stand and provided this countervailing version for the first time ever that is when we talk of defense counsel by the way we're going to have to call  although she didn't mention it here today there's some reference to closing arguments that somehow supposedly on the part of the state's pose of the shows that we had this intent as early as the trial i would suggest that that is a misinterpretation of that statement in closing the state's attorney was talking about potential witnesses we have to when we put on a trial before a jury we cannot stop the proceedings and say hold on we've got some rebuttal witnesses we're going take a few days to get them we have to have all our witnesses whether we call them or not we have to have all of them available all of them under subpoena and as a result if we have a witness that we don't call for purposes of our opening case in chief they have to be made available just in case and that's exactly what the prosecutor said a closing argument we had missed feet of bailable just in case defendant got up on the stand and said something different something why only different then the events of not have that have was not exist in the state no it was not and i think that was the whole point of our bringing her to the whole angelus known by prosecutors that she would be able to testify in that manner there is some indication  the record in and it comes from defense counsel but it is not repudiated by the state there is some indication in the record that defense counsel was told by the state in this case that when they were prepping their witnesses that's the first time that they may have heard of was part of a written statement the witnesses provided or a verbatim account absolutely and that's not because of the rebuttal paragraph but it's because of the rule for twelve a one of the subsections i think it's three relating to the the defendant touched on prejudice and i'd like to point out to this court just very briefly that the defense counsel was well aware of what the facts in this case were defense counsel had a luminous discovery he knew what the state's witnesses were going to say he knew that our theory of the case w turned stood aimed and shot that came through from multiple witnesses it also came through from the physical evidence that we disclosed to him prior to trial the testimony of ms to cumulative as that she was not her best witness country to a defendant says she couldn't identify the face of the shooter so she wasn't able to point to defend it in court but what she could do is she could take defendants testimony and rebut it and that was her purpose of trial it was a legitimate purpose and we fulfilled all discovery requirements with respect to her and all other witnesses in this case you know as to defendant second claim to durham's testimony in her battle that testimony was extraordinarily probative and highly relevant with respect to defendant state of mind as defense counsel told this court the issue in this trial was not whether defendant shot he didn't met shooting the issue was his mens rea whether he had the intent and defendant's claim as of course the labor before this court was that he just turned around and shot and didn't even look where he was shooting but the arms testimony went to something that happened about eight hours earlier in  different location right and there was enough similarities which we do not need a great amount of similarities to presented as other crimes habitants of intent there was enough similarities in the case to establish high relevance i think we can all agree that there was a gun was present in both case in both scenarios but other than that what with this info there was a was far more we have an identity of location and the identity a location was  cobras considered that their turf and a short way down from clemente high school was where the maniac latin disciples had their turf so it was at a crossroads of two gangs were gang activity was rampant as a result when there were crowds outside of clemente there were spanish cobras available and as a result that's why defendant went in the morning the morning before school started which means there were crowds there were students and presumably there were spanish copus then too just as there would be when school was let out at that very low so the times where they may be different they are highly interconnected because of the fact that one is before school and one is after school so students are available and nat's what defendant was doing that day contrary to what he testified to that he was on his way to his grandma's house and just coincidentally got wrapped up in this ga reason he was out there looking for a rival gang members there to fight them your honor to confront them he was carrying a gun in case things got out of hand but as we know as the evidence presented itself there was in the initial fight and defendant i would suggest to your honor's that that earlier event that morning when school was letting in is indicative of how he was looking for a spanish cobra it puts us right into his mind from the from the words out of his own mouth tell us that he was looking for somebody who was a cobra and when he found out that two out drum was not a member of the spanish club or gangs but rather was a member of the g d's defendant told him i don't have a problem with you the way with cancer disciples your honor the prejudice analysis in this case is zero there is absolutely no prejudice from the substance it is it shows a kind of with a gun and it shows defending the skin member that's the most you can say about the prejudice of the stis other crimes of events but we know defendants again member we've heard that over and over and over again in our case in chief we also know defendant had a gun by his own admission he says i brought a gun on the boss and as a final matter your honors i would like to point out that when you take a look at this record judge souths reviewed this claim exactly the way he should have reviewed this claim there was no misapprehension of the balancing test in the balancing calculus he knew what the probative value was and prudently albeit it's still a position it could come in in the case in chief he gave defendant the benefit and he waited until it became even more relevant in rebuttal now as far as judge sachs consideration the prejudice remarks the judge said saxe said with respect to the prejudice were due to counsel's inability to articulate prejudice and i would suggest your honor that to this day nobody on the defense side has articulated any prejudice in this and this evidence was highly relevant and should whining that the fact that they disclosed her as a potential witness somehow lies with the terms of the rule retainer a bottle witness again i see no reason why the drafters would have put in the specific language argument i mean i think the words of the prosecutor highlight the fact that they knew the damage that this witness was in until they specifically said they had her available in case the defendant came up with some cockamamie story about how he shot the gun big they had to have they had to know what she was going to testify to i don't i don't see how any reasonable person could read that any other way than that they were well aware of what the substance of her testimony was going to be they didn't disclose the fact that they stipulated that the that she never told the police at and the fact that the prosecutor made those remarks is totally indicative of their noncompliance with the terms of the rule i don't think you can in genuinely didn't know that this rebuttal witness was going to be refuting what he says i think by the very nature of the fact that it was a self defense claim the i knew that her testimony was going to be relevant in rebuttal so i'm i'm i'm i don't i don't think that's a case were going to be they knew that she was going to be a good witness the only other thing i'll say and i'm with the leave of the world just say this with respect to the other acts evidence this was not extraordinarily probative of anything it did not go to intent in doyel which this court decided number of years ago an individual other acceptance that took place forty five minutes to the crime that the defendant was actually charged with was excluded was was found that it seven or eight hours later and i think the fact that the state tried to meet the supposed a game shooting you don't take his of them out again i think that i think that the fact that the state is tries to argue this that wasn't and it wasn't just it wasn't just huge issue in the trial the disputed issue is whether or not he intended to shoot anybody that day or whether he was doing it in self defense and it was in a boat this this thing that took place at the school if you can even believe this testimony again it wasn't there was no threshold similarity between these two all three patients but i think that highlights that the entire problem with this this whole case in rebuttal which is it was the last thing that the jury