remain either in the first part of the argument for a motion to quash and suppress or in the rest of the argument for a new trial due to denial of the sixth amendment right to effective assistance of counsel we also ask in the other parts assistance of counsel under the sixth amendment as we know the sixth amendment requires that counsel there's two two prongs to effective assistance of counsel the first is that counsels performance was objective and reasonable on the second is that that prejudiced the defendant in this case there were three specific failures there was a failure by counsel to move to quassia and arrest and suppress evidence there was a but that you need to make the decision about whether counsel was ineffective or not always in a post conviction petition there can explain is things would come out but i don't think those things are necessary  honor i said you guys are the ones to use me not you guys your honor they're the ones who make this decision but i'm here to convince you that you have everything you need to make the decision now ok the second thing the second reason is i have a lot of cases i have one that's being litigated right now where my client did wait and it is a post conviction proceeding and then the state comes around and says oh no that's forfeited because everything you needed was in the record so it's kind of a catch twenty two i think that we're litigating this because we believe that this is the right form and procedure to do it so counsels first err on the failure to move to quiet this arrest and suppress the evidence trish on was arrested the night of the shooting of the victim does a rape austin without probable cause even the state you know in closing argument when it's reciting why he's arrested he said she said he was standing and there were always around him and he was standing next to the guy with the murder weapon at the time the police didn't even know this was a murder weapon certainly it was a weapon and certainly when the police saw all that weapon on the codefendant anthony me that was a perfect reason to arrest and to me but that was not a reason to arrest for sean jake particularly when there was testimony that there were hundreds of people out there you know this was just a big unruly situation so you were arresting everyone who was standing next to paul at search standing or near mr me it would be a lot of people who were going to jail that night so he's arrested without probable cause they take him down to the station they question him and he gives a state if that statement had been the only statement it would have been and next fall the tour statement but the state used it extensively i just went back and re read the testament for the closing argument this morning for pages and pages it goes on about how there was the first statement the second statement and the third statement and there were discrepancies between them and there was no way that the taint from this illegal arrest was attenuated by the time that trish on gave the statement as we know counsels against the finding of the pain and fourteen you ation is that miranda warnings were given to the proximity in time was he was taken down he was immediately question he immediately gave the statement that he was taken home before the sun came up there were no intervening circumstances the police flagrant see while you know they weren't beating him or torturing him in some way there was also testimony from the officer that the reason he was arrested was to develop object to prejudicial hearsay statements first by two police officers who were allowed to testify to the jury that on july fourth the night we just talked about an august fifteenth a later date that witnesses had identified trish on as the first guy says at the scene and present during the events in the second guy said that while he was present during the shooting and was in fact the shooter now those statements were not necessary for context of what was going on during this police investigation and even in the course of the investigation exception police officers are not allowed to testify as to the substance of the statements they can say well we talked to some people and based on what we found out we went in this that's not what happened here they testified to the substance of the statements of witnesses and then even named the supposed witnesses and in fact said at other points well you know there weren't really any witnesses but what is allowed to happen was to build up a story that from the very beginning kirsch on was being hughes not only did these officers have hearsay statements that they brought him but another witness  pandya was allowed to testify to hearsay statements she testified that she heard somebody who's not a party to this case and one anderson tell my client trish on oh you shot that girl and the involved in this mob action he was doing this some shooting and so you know we argue that if you're one of the ones doing the shooting you can't be that excited when something happens as a result of that shooting the second part of that is testified that this statement was supposedly made several minutes after the shooting had stopped she went into her house she hid with her children and she came back outside and supposedly heard this statement so we don't believe it's an excited utterance exception  and we also don't believe that it's the tacit admission rule that could bring this and there are problems with the tacit did mr admission rule in criminal law because it implicates the defendant's right to silence and the tacit admission rule is not in the recently adopted rules of evidence in this state so we talked about the motion to quash and suppress we've talked about this prejudicial hearsay that counsel failed to object to and third thing was that counsel failed to perfect impeachment by omission which could have been used as substantive evidence of innocence the one we just talked about said that she heard she saw trish on shooting and that she heard this conversation between antwan and trey shon however when she was asked about a statement that she made just two days after the shooting name even though she said she'd known him for years oh yeah he went to school with my little brothers i know kershaw but she didn't give his name to the police she's asked about the statement she admits that she made a statement but she insists that no i did tell the police his name she denied it she just gave a big description of while he was a black man with braids and looked like this  so all that was out there in ray niece's testimony and then when the detective who could have proven up this impeachment was testifying he also didn't ask that detective detective more us about this statement that when these had made all there was imperfect impeachment by omission and the case law says it's incumbent when you raise this when you i guess part of it is just fairness to the witness that when you raise an inference that they're whining or you know doing something like that that you prove it and counsel didn't do that here but because he did this also couldn't be used as substantive evidence of pressure on innocent we know impeachment by omission arises when a witness omit fact that would have been natural or likely to mention if it were actually in existence in this case she knew trish on he went to school with her brothers and when the police asked who did this she said well i saw him as a play guy had it was about this high about this skin tone didn't say anything about it being for shon and yet that wasn't proven up and so it can be argued to the jury so in some for these three reasons the motion to quash failure here say failure and impeachment by omission failure counsel render objectively unreasonable performance the prejudice prong of the sixth amendment analysis requires that we evaluate whether it's reasonably likely that the outcome of the trial would have been different absent this evidence but other question is could the trial have been fair with what happened here so first let's talk about the facts that are relevant to all three of these  nobody had i did excuse me there was no physical evidence the true sean was the shooter no gunshot residue no d n a no anything like that he had an alibi for the time of the shooting this show on the foreman testified that she was driving him home from the fireworks at the time that the shooting took place there was a reasonable explanation for the change in their stories from one to the other first of all i doubt anybody could give three consistent detail statements over three months and get every detail correct second of all even if he did he was involved in this case his friends were involved his brother was involved in this case so those that make it right it doesn't necessarily make him a good citizen but there is a perfect perfectly reasonable explanation for why he might have shaded the truth a little bit fourth one of the eyewitnesses who was supposedly an intended victim didn't even identify chris shot at trial the ones who did the witnesses who actually gave the eyewitness evidence against him all had strong motives to lie or to shade the truth to protect these two guys the intended victims johnny campbell and ray shot him all recalled that they were the ones who were supposed to get shot if anybody was and the victim was actually an innocent bystander there were forty caliber shell casings behind where these brothers were hiding yet supposedly they were not involved at all they were not shooting they were just you know innocent parties  these witnesses didn't come forward until several days later a couple of them said they didn't even come forward until a week later they gave them plenty of time to get their story straight so that they could protect these two brothers the two brothers obviously had twenty five seconds there were stiffer testimony about what color down there was different testimony about how many shooters there were some of them said well only trish on was shooting other people said there were lots of guns and lots of shoot shooters so the never did by the way at the end of it he didn't admit that he was involved in the killing either what the state was allowed to do was take three discrete exculpatory statements that in and of themselves were harmless and point him paint him out as a liar and then the state says well this is convenient was he hiding you know what's the real truth so the state was able to use this to a great extent so the third the third thing on the price just after we talked about the balance of the evidence we talked about the presence of the suppression failure is the prejudice of the hearsay statements the state used those extensively rebuttal the police statements that well lots of witnesses of this time when he was the shooter raised this false specter that he had multiple users who were accusing him every step of the way which just wasn't the case and also painted him as a monster who you know somehow shot this innocent bystander and was completely on moved by it all so this was very prejudicial on the state knew that that's why they brought it in and they make good use of it for their case finally as to the prejudice of the failure to perfect impeachment what you had in essence and respond via failing to identify trace shine with an eye witness hussein trish on is not the guy it was testimony substantive innocence and because counsel failed to perfect this impeachment he couldn't get an instruction a jury instruction that would have allowed the jury to consider this a substantive evidence of innocence and not only that it would have cast doubt on her credibility as to the other things that she said and it would have been the only eyewitness to differ significantly from one of the other three said so this in particular was very prejudicial for your honour's i'm rapidly coming to my conclusion we are here to contend that counsel was ineffective for the failure to cost this arrest and suppress the evidence for the failure to challenge prejudicial hearsay and for the failure to her facts this impeachment by omission bahrain vania that could have been used as substantive evidence of innocence these were jaggedly and reasonable and it was prejudicial because the evidence here was far from overwhelming we asked as to that first part on the motion to quash the reversal on remand for that motion to be litigated and for the second two parts for reversal on remand for a new trial again on the sentencing which i'm happy to address if you want to we just ask that the court on the basis of the briefs either reduce mr jakes sentence or different one if it gets that far i think counts was afraid of presenting her statement for fear of bringing in the consistent parts so there's just lot of information that's not available here whining in the world would status that inconsistency would be present and would have been present to the jury even if that first statement was never brought out so that the prejudice th wasn't there i don't know nothing i came after the shooting was all over with just so great that there is that that that would reasonable decision on his part  statement regarding the hearsay objections that conversation rather you shot or i don't hear that is in fact at miscible as a tacit admission there is no doesn't mean anything or it was just an exercise that right so could not be used that is simply not the case where you have the conversation in everyday life right there at the  definition has a listing of what evidence is not hearsay one of those items is statements by a party opposing this conversation wrong shot or i don't care or i don't give a fuck a statement by a party of party of course so it would be admissible under rule either one so the say that the tacit emission rule has been rejected or has been somehow done gunfire like this and there's really been no time for reflection in this says scenario within a very short period of time so it would be admissible under the theory that it was a  with respect to the statement it's made to the defendant we have people who figure that was not hearsay in that context with it was never offered for the truth of the matter asserted and if fact with respect to that first statement it could not have been admitted for the truth of the matter sort of because at the time the first time during the first conversation with lee said we have information like any other crime that was a ball faced lie they had no represent all the supposed witnesses in the state's case were brought out by the defendant and if you transpose the defense argument in his brief with the closing we don't believe that there's any reason that counsel didn't object to these things we don't believe there's any strategic reason that he wouldn't challenge these things what possible reason for instance could you have for not getting on the record a substantive evidence that a witness and eye witness who knew the defendant gave a statement two days afterwards that was and it was evidence of his innocence there's no possible reason that there's plenty on the record to make that decision we  need as to the closing argument about the exculpatory statement they didn't just talk about oh you know the first person the second were the same and then all the third man was the one that made that they were so even with the second the third it would have been the same there were discrepancies between the first and the second to your honor's will go to pages nineteen through twenty one of them portions of the record the state's theory makes extensive use of this and says well how convenient why is he lying you know i'm talking about that first statement for several paragraphs for this wasn't any afterthought defense counsel you talked about it in closing argument because by that time the cat was out of the bag you know  i hate to use this but there's the saying you go to war with the army you have at that point it was too late to do anything about these statements as far as the tacit admission rule even i statement could come in under that and once can i am torn is not a party opponent there is no evidence that he's even charged with this with this case so his statement bro you shot that girl should not have come in i don't think we see that the rules of evidence are the tacit admission rule just that they were not included again i don't think excited utterance applies the statement were several minutes later and you know if you can imagine the movies all the movies we've had of the gunfight at the ok corral this every one of those kind of statements before and just after and during the shootout come in against every one of them sure a guy's statement about himself that he gives can be admitted against him but not against somebody completely different which is what happened here  well let me let me read from page seven real quickly of my reply brief the officers didn't just testified that they said this stuff too fresh on when they were questioning him they testified to the jury that witnesses placed him at the scene and witnesses named him as the shooter opponent says well that wasn't even true we don't give people a special reward for why when they testify about hearsay statements finally as to anybody testify about the substance so i saying why do we need to have anybody testify my client is innocent we know what we need to do about your niece's statement all we need to know because if counsels implications about that statement w false counsel would be unethical and certainly nobody's saying that he's not just making up stuff for impeachment so we know what was in that statement finally i can do it quickly does this mean two minutes or one well when it first came on  sean and that she did not tell police that she later learned the truth only later learned the truth sean was the one shooting so you know the fact that oh she's questioning she slips up for a minute that's not the point she corrected