votes big tactical advantage both in warfare and in a criminal courtroom but that is the reason we have mandatory discovery rules to prevent either party from gaining an unfair advantage by introducing surprise evidence at trial the prosecutor here broke the most serious of those rules by introducing undisclosed evidence of the legend statement by the defendant protect the accused from surprise and fairness and adequate preparation the prosecutors trial bush here to just go to the lower court abused its discretion by failing to eliminate that prejudice the case was also clear on the state's various procedural arguments to facts distinguish this case from the cases the state relies on this was a legit defense statement and it came out in the live trial testimony for the first time that sets this case apart as a matter of fundamental fairness this court should reverse and a man for a trial turned into the first point the prosecutor's filing bush predators our supreme court created in people versus weaver the seminal controlling case on this issue created a four part test to determine the president's resulting from this particular type of discovery violation those who are factors are the prosecutors will find less it's a long standing rule that this particular type of discovery violation because defense counsel had no idea it was coming he could not have been prepared and for purposes of fundamental fairness this court and its sister districts hold that this issue should not be waived from time in this that that argument essentially would allow the state to profit from sandbagging the defense so that because defense counsel was unprepared by result of the state's failure to the swallow's then the people versus the board is the fourth district case that's the most recent on this issue there's no fourth district on this but in the board that there was a quick objection that happened after the statement came and so you know what happened in the board happened here that wouldn't have satisfied willful the second factor because this was a trial by ambush by courts hold that he doesn't have to show what he would have done if he did right or notice because because of that situation but even if we put aside that presumption just like in people versus weaver the supreme court there noted that the defendant could have interviewed other potential witnesses that who could have been present for the statement and those witnesses might have refuted the statement ever heard or put a different interpretation on it codefendants lives of the police initially before changing their stories how he did in response to the police interrogation when they told him to do the right thing with no promise of a good deal and he did tell the story and then they didn't they didn't believe him they thought he was holding out all the start he waited until three days before trial he was that he wasn't present all the way up until three days before trial and only then after his attorney was able to negotiate a pretty good plea d finger cody and that was after cody had already named him as being present so you may bet some motivation to get back in the other strange thing is led down the start you never heard so he's driving this pickup truck that's at night there's four of them the other two are in the back two of them are up  seventeen year old kid he's not a gang member the other three guys are gang members they don't even know him very well thought and started myths that they use him as a patsy to steal shotgun shells from a wal mart and then he says he's just along for the ride the rest of the time that's a bad decision to hang out with these guys the burglary which was complete accountability law does not necessarily include further about sophia no knowledge of that if he was part of a bank robbery that was an ongoing crime and his his co defendants committed other crimes while that was y he was responsible he admitted to stealing shocking shells from a wal mart for what purpose you know he did he says he didn't know he says that he'd go as a seventeen year old kid to know these guys very well and they pressured them to that he said that he did not go in to get shot down but when they went to the house to pick up a shotgun he says he stayed with the truck and he didn't see it and there's not there's not much testimonial what happened after that start he says he not only testimony here to defend a statement that a state witness has credibility issues or or very and doesn't have credibility issues like start he does here that's a test case it's up to the jury as from a credibility and decide who they believe that's that's a at the time he's a seventeen year old kid he's telling a story to his friends he never incriminate himself though so again that's a credibility issue for the jury sharon also has some testimony issue basic balancing of the witness credibility but also talk about the fact that here the state's witness had serious credibility issues because he was a codefendant charged with the exact same crimes and he was testifying pursuant to a favor that makes this even more of a close case than it would have been had he been a for scene with us now the fourth factor also favors cody and that's because the undisclosed statement here was powerful it undermines cody's credibility and strengthen the credibility of all the starkey so it's skewed that balancing of these two witnesses but additionally it also undermines cody's defense generally that because he was just a patsy for these gang members he didn't know the shootings were going to happen later that night the statement that comes out is essentially that cody toll dalton started to live while they were both in jail the lie that he proposes never actually gets used by anyone which is odd but he  sounds more like a ringleader he sounds more like he's in charge to start he says he told me to write and that sets aside the prosecution brings this then redirect after the defense has attack start and start his credibility so the way the manner in which the prosecution deploys this move is specifically to rehabilitate all the circus credibility first i don't believe it's in the records i think i looked him up on zero c and he's he's a little bit older but all these guys are pretty young and then he's the only one that has any knowledge on the witness stand of what happened inside the truck and that's the that's the key evidence in this case all the other witnesses are outside there they testified that what happened afterwards a ballistics expert testified that you could fire the shotgun with two credibility is it is at issue they also say that when the statement actually undermines the defendant's defense as it does here that that's also a serious serious issue so he said that he was just a kid he didn't know it was going on and the statement makes it sound like he was he was somehow at least a period of these three gang members or was somehow in charge of things and that's that's seems hard to swallow considering the facts of this case now because all these factors w objective seemingly nonexistent evidence and they want to know that fundamental fairness requires us to consider the issue both of those cases let it evolve significant gap in time from the initial statement that was not  to which which in those cases happened when the defense was cross examined by the prosecutor no objection happened it was only later on the state's rebuttal case in both cases when they attempted to bring it witnesses to prove out that those statements they that he was there but he didn't participate in the age planning or execution of the shooting he admits everything about the burglary former eventually he lied about it first but eventually he says yeah i did that everything after that though is in contention he admit any of that to dilate goat or to the police there's no testimony on that and there's no there's no evidence of any sort dahlan starkey waits until three days before trial to change a story from i was not present to i was president so he did all these things that i didn't good morning may have placed the court the trial court here did not abuse its discretion in denying a motion for the mistrial as argued in my brief the defendant at no time objected to the testimony of this star offered in not objecting the trial court was not given an opportunity to correct the error if there was any error to overcome the failure and it also was not addressed in a post trauma ocean so the issue has been forfeited to overcome a defendant has to establish plain error but again it's the state's position that the trial court's handling of it was not fair at all and therefore you need not reach the plane or reveal that there is no question the state to disclose the statement the testimony that was provided or the i should say the explanation that was provided by the state was that on the friday prior to the trial starting there was a meeting with  question that that was an error but there's also no question the defendant didn't object he did not accept the trial court's offer to admonish the jury which would have been a reasonable alternative that was presented to him and he did not seek a continuance considering all of those circumstances the trial court's finding that there was no manifest necessity to grant a mistrial a most drastic and severe sanction was proper i know we have addressed stores for sure and so i will kind of jump into the prejudice argument which is what justice hope you had asked that it be addressed first of all i want to say that weaver is a five hour test it's not a four part test if you read reply brief was not meant to be a misrepresentation of the factors lovejoy was decided by the supreme court in two thousand and nine it is the most recent supreme court case to address the factors when judging whether a mistrial is appropriate for a discovery violation weaver was thirty two years ago lovejoy cites two cysts to ski and i apologize if i'm not saying that correctly and s identifies the exact same three factors that lovejoy cites susi does mention that the state failed to disclose it there's no argument of that but the term willful willfulness is not to be found it's mentioned generally make is that inciting to lovejoy it was not an intention to dismiss other factors i was citing to the most recent supreme court case to address these factors to joyce is saying that while this is not a fair no i don't i don't at all i think as you point out it's not an exclusive list but there are a multitude of factors to be considered here imo one of those factors is there was no objection that was made and objection that the said that they would sustain and i disagree that the state argued a mere appearance of the word objection would have been sufficient these cases are distinguishable from the others where an objection was made possibly untimely but an objection was made an objection is not sufficient to simply say i object a general objection does not preserve an issue for appeal it's to be timely it's to be when the evidence is presented or as soon as they're that there were two witnesses with credibility issues that the jury had to consider which one was more believable that's not true the state put on fourteen away asus yes a lot of them were to the investigation process but i think that diana cares testimony has been minimized and not fairly subtle she testifies she has a hearing issue but she also testified i hear and she testified that the defendant was there and that he said he was involved with the shooting yes he did not say he shot the gun no he would not identify the others but he said i was involved with it and he was laughing and he was bragging is that the word she use whose mission in the test involved involved in the testimony that is what she said so you have backed the jury had evidence that again contrary to this claim that defendant just casually knew these people wrong place wrong time bad judgment in the statement that was presented to the jury the defendant said that these same people had contacted him to commit a little robbery against a gun store on another day now granted throughout defendant statement he gave conflicting testimony and it was clear that much of it was lies but how are we to judge based on what he said if we're going to accept his testimony that he only purchased the story of the bullets but he didn't intentionally participate in anything else then let's accept the testimony that they also contacted him another day to commit a robbery against a gun store this isn't a casual acquaintance these are people who knew each other at least on two occasions by defendant's own admission he was willing to be around them and participate in the testimony was  starkey did not testify that he assumed the participation of defendant starkey testified we discussed the plan we discussed that we were looking for a fight we discussed what we were going to do we made a plan to go steal these bullets he did say he did not see defendant handle the gun he did not see defendant hold the top or open but he said we collectively planned this it reasonable inference for the jury to make from that is that they followed through with the plan and that defendant held open the top of the top or while cole shot the weapon out of the back i just don't agree that the evidence here was close moving to the strength of the undisclosed evidence i don't believe it was significantly stronger defendant lied we know that from the many many accounts that he provided in his  admitted it on the stand they both lied is it really that shocking to hear that prior to trial they're still talking about a lie that could possibly get them out of responsibility for their actions i don't think so and i also know that in the heat at the hearing on the motion to reconsider evidence the defense counsel acknowledged that it wasn't just the testimony starkey that was incriminating but it was that an defendant's own statements which was raised earlier today aren't defendant's own and statements incriminating well at the hearing on the motion to reconsider his defense counsel said yes that is the most incriminating evidence a bond with the evidence that stark you presented to the trial as for the likelihood that the disclosure would help to discredit the evidence i would like to explain my statement that i stand by in my grief that defendant acknowledged there wasn't anyone else who heard this in defendant's brief the statement is cody supposedly made this statement to starkey during a g d class in jail where other witnesses were likely present given the defendant made the statement defendant knows who was present when the statement was made the inference that i am making based on this as if the defendant is arguing there was likely somebody present but not arguing there was somebody present again when defendant was there he knows who was present that there was no one else present to hear this if there was they would have been called to testify he would have asked for the continuance this evidence all supports ride this way for factor this instantaneous analysis by friends as well defense counsel when he objected and they had the discussion on the fact that it had been disclosed there was an opportunity for him to seek a recess which i think would have been granted  inquiry to inquire about all of this and then to make that decision from there it is again one of those factors and weaver i'm not suggesting it is the end all be all factor but it is one of them and the fact remains that there truthfully defendant would have known better than anyone else and it was his responsibility to be candid with his counsel who else was there when the statement w considering all of these circumstances i believe the defendant has failed to establish that he was prejudiced by what was clearly an error on the state's part and failing to disclose the statement that was made and i would ask that the trial the first district in the lower decision which generated the supreme court decision talk quite a bit about the importance of the specific rule because the defendant's own statements are such prejudicial evidence that a confession a statement that is somewhat incriminating it's a different type of evidence it's the most pretty presidential kind of evidence we were talks at length about how the rule is mandatory and it's not to allow the defense to create its strategy for trial initial objection it was brought in a motion for mistrial after the conclusion of testimony exactly like it was a trial by ambush and it was a defendant's statement that was closely balanced testimony of different witnesses it's exactly on point the issue of defense counsel said exactly that i don't know i know i don't want to i don't want to talk about it anymore because it would only it would only bring it up and draw more attention to it i think this this court case and people versus lewis is very helpful on this point l fairly clear this type of evidence is so is so prejudicial it cannot cannot be dealt with at trial when there's a trial by ambush the sale such as a bit