arguments i'd be more than happy to address those as well this case boiled down to a battle of he said she said a credibility contest where the defendant's ability to attack the veracity of what she said was substantially undermined by the trial court's a row nice ruling which denied the defendant access to statements which were clearly discoverable i did the supreme court rules under those rules all think mints which are attributable to the defendant must be disclosed by the state upon britain right by us when this rule is violated this court should reverse the matter if the defendant is prejudiced and if the trial court does nothing to eliminate the prejudice that is inflicted  it is our position that a discovery violation clearly occurred in this case when mr myles jury trial was about to begin there was an in chambers session where both parties in the judge that down to discuss numerous pretrial matters at that time the state first said that they wish to disclose that during the preparation of two officers to testify in the preparation occurred earlier that day they had learned of two soon thereafter the state said in addition we would like to state that while we were preparing the complainant in this case we learned of new additional statements which the complainant is attributing to mr miles which occurred before during and after the incident which they plan to elicit during testimony the state then moved on to it a different subject entirely and when defense counsel asked for the substance of those statements the court intervened and said incorrectly you're not entitled to the substance of those statements you're only entitle to know the names of the witnesses which is which you already have in this case so you don't get the substance of those statements which is clearly contrary to the mandate that some imposed by supreme court rule for twelve we think that it is indisputable that is that a discovery violation occurred in this case where the trial court actually intervened and prevented the defendant from learning the substance of numerous statements which the complaining witness was pointing to attribute to him during her testimony turning to the remedy there again are two things that this court should consider whether mr miles was prejudiced and also whether the trial court did anything to eliminate that prejudice addressing the second issue is quite simple here the trial court in the most unusual circumstances actually responsible for the discovery violation in this case this is not a circumstance where the trial court granted a circumstances in the case of people should be tripped where defense counsel objected to the admission of undisclosed statements and the trial court overruled those objections that the defendant should not be precluded from raising the issue on appeal for failure to request for that and that attempted to move on to another start subject your honor we would like to know the substance of the statements which were not disclose during the discovery process and that is when according to being agreed it's a bit more difficult in this case where we cannot say for certain which statements were not disclosed we still have a circumstance where the state the state knew what its obligations were in this case they had already fulfilled those obligations specifics of the statements that were made by the could have walked up to defense counsel after the same check it chamber session and said i think the court may have gotten that rod i'd like to just hand you the substance of those statements so that you're prepared to go to trial here we do believe that ed that though the statements it's conjecture and speculation i can't even based on the record and combing through the record and looking for statements which appear to have not been disclosed before trial i would not feel comfortable saying to this court those are the statements through the state that specifically because there are very few statements that were disclosed pretrial the state referenced be hearing that was held six months prior where there were only one or two statements that were disclosed and those were limited to statements that were made during the time of the attack the state comes in and said we sense we have made statements therefore before during and after the attack we plan to elicit them indicating that the state felt that they were strong enough in order to craft you know to work into their their case then the state comes forward during opening statements and actually mentions a few statements which but he holds a screwdriver to your head and if you'll pardon my language that is suck my dick or i'm going to drill the screwdriver through your head the state says that during opening statements that this is the evidence it plans to present to the jury at their after said that after this you know mental state and streetwise smarts that allows her to escape the circumstance by taking advantage of of mr miles demeanor after this attack thereby explaining what would be somewhat unexplainable why a rape best with continue to  drilling the screwdriver through her head during trial that the state and they're after uses a similar statement during closing and rebuttal argument so we can at least cystitis that the state believed that there was some weights of these statements and that was their plan to bring them in and the complaining w ss also in this case i mean testimony was made up of the conversations that she was having with the complaint with mr miles over the course of the evening how he acted before they had the encounter how he acted that house horrific things that he complaining witness is going to testify to these are the exact statements in the exact order but they are required to convey the substance of those statements and when before trial all you really have is a couple statements about for instance when before trial  d again i ask you to forgive my language but before trial as they state allege that mr baez turned off the light and said i'm going to fuck you in every hole that you have and it's a trial the complainant said and insisted that no the language was i'm going to hit you in every hole in the substance of that statement was conveyed i don't think that we would have a very strong prejudice argument if that was the only statement that had changed but now we have statements that are being made before trial and after trial which the state is relying on to either show force or to explain the unexplainable as to why she would ask for her home and we think that that actually strengthens our case here because even though we don't know the exact statements we know that very few statements were disclosed and that a litany of statements actually came to light during trial and mr miles not knowing those statements was unprepared to for instance you know speak with the other witnesses who actually did testify beforehand and find out whether they had heard the statement before whether this was a brand new out having just met mr mile sister and having just seen another woman and a young child in the house so with knowing what what threat was actually disclosed to the examining physician and defense counsel was able to say you know doctor was this threat explains you during your interview with the complaint and the doctor said no the threat was a threat to her family and also asked the detective whether or that threat had come to light you know that a light so you can at least look at her pride you can look at least explore prior consistent or inconsistent statements there are other statements that when they were speaking in front of the liquor store there were people that came back and forth there were two acquaintances lure his victims to his sister's house so there are people sitting there perhaps we can find out what whether they were in fact talking about her health conditions whether they did talk about her children whether he was showing interest but she didn't see the victim out did not testify she she did say they sat outside of this liquor store for a half hour for quite some time where they were chatting each other up and getting to know each other and he's asking her name and he's asking you know more about her and if there were these other and you know there's testimony there are other people around those people that actually was you know they they actually acting like they've known each other for quite some time it was her contention that they just met that evening he said we've known each other for three weeks we've been involved in a sexual relationship were married changing sex for drugs if that someone else there and comes out and says oh yeah they were talking about something that happened two weeks earlier between the two of them they were talking and i did suspect elation and trying to turn into what happened afterwards her contention is she manages to convince him that she loves him and that she wants to be with him she's going to be his girlfriend well but if you three three but that's after she's read it again what we're talking about is is his ability to discredit the statements that were not disclosed and there were other individuals who were and house perhaps the seventeen year old as the sister could have said know actually what you know they didn't come out looking like they had discovered this new role for one another they came out looked like business partners and they were bouncers about their relatives of him right it's his sister we don't know who the seventeen year old is that is the sister right so but the since we know who that is supports mr miles theory or version of events even more strongly than it does the complainants but we think at minimum we're talking about a fairly balanced scale in this case and the jury the end is left with this credibility contest and it's hard to say at this point and that's why courts have said that the ability to measure the prejudice it's it's speculative it's incredibly difficult how much you know a case like this a few minutes if you know time to interview time to look for some witness who could impeach and say oh no she never she never actually said anything before about you know about him trying to being a being a baby and wanting to be his girlfriend at the end when we talked to were all that she had to say was she said i had to go check on my grandmother you have to let me go so i can go check on my grandmother so then you're actually able to not only discredit you know what they knew about ahead of time but also to say ok no she's this is actually brand new in addition there are statements it's a good we believe that there are those statements defense counsel would have been able to say didn't you tell the assistant state's attorney something different this morning and they have to impeach through a police officer to say you know two hours after the incident  set that the failure to mention that's the police offer officer side it's an entirely different method of impeachment and also i contingent is a much stronger impeachment to say two hours earlier wasn't gore story acts and now that you've taken the stand you've actually admitted that statement or you've changed the nature of that statement or you didn't even mention this when you talked to the state two hours earlier having those kind of statements in a case where the state's case rel primarily on the testimony of a woman who changed her story numerous prior inconsistent statements we have problems with the evidence it's very hard to say and we contend that because of that weighs in mr miles favor what prior access to th statements would have enabled the defense counsel to do in this case and numerous means of either attacking those statements or using them to impeach her well that's part of your position is that although you know about those who drive and you know who bought all the people in the house you just none of this took place they showed up they were had some they had some food he provided her with some drugs they had an argument over whether they were he was willing to exchange drugs first that she was he was unwilling to do so because she was menstruating at the time she tried to persuade him  you know those facts are all in the brief his contention is going into best that she doesn't know which if if his story is correct he doesn't know what she's going to say occurred during the attack we know that she said something about a screwdriver and that if you threatened her with a screwdriver drilling it through her head is it good that there's a reason the state chose to use that when they when they made their opening statement quoted him and then in closing said do you want to know what evidence of forced as evidence i have is i'm going to shove this into your head or i'm going to drill this into your mean i personally think it kind of brought up if you don't if you if you were a given time to look through all of the discovery materials to comb through them in detail make sure that you are correct about think each minute and then to say complaining witness you know i would just say that there are other means there are other things either impeaching through could potentially prior inconsistent statements given time to interview the witnesses who are going to testify and say detective can you just let me know whether this  you before given appropriate time given the substance of those statements defense counsel could have prepared to actually impeach or impeach their prior inconsistent statements through the other witnesses but because a cardinal rule of cross examination is you need to know the answer to the police officers often are able to very convincingly say that's a summary i don't write everything down is that something and then on the flip side again you know if if she is suddenly saying oh there's this romantic element that doesn't come out until trial that suddenly it's not just after check on my grandmother but i we're going to be together forever and that's why he believes me and leaves with me then suddenly maybe your decision not to call the seventeen year old would have changed and you'd say ok wait a second i need to get this woman in here it's just explained that when they left they were looking at the drugs and trying to figure out whatever in the tripp case the court actually didn't even look at that they said you know they said the project prejudice resulting from surprise and fairness and the president preparation as well as from the lack of opportunity to investigate the circumstances surrounding undisclosed alleged statements is so statements calculable that it cannot be conjectured by the court they didn't there after say this is what defense counsel could have done would have done with the time they basically want to they basically laid that out there and walked away we do believe that there is something that the defense counsel could have done in this wasn't used during trial the only evidence that was offered during trial is the from that it there were objections to some of the testimony but not on the basis that gee the statement was never disclosed to me so but the summary of what the victim had to say about what the defendant said i heard but didn't do then but of not having done that it's speculative as counsel has acknowledged rather forthrightly and speculati may very well be to be a reiteration of the of the statements that that were alluded to at the morning literally but we don't know all bets that that's it we don't know i don't know the facts doesn't know and when you don't know what it is and there  no objection me how can you assume that something that we can't identify and that nobody objected to was prejudicial and i think the answer to that is you can't find it was prejudicial i think the defendant  fair trial not a perfect one but the fair one he was convicted fairly based on the evidence the statements he made that were offered in evidence against him were statements he clearly was aware of that had been any additional undisclosed statements they weren't offered nothing that's because it seems to me what the douglas what what you didn't chambers i mean i spent thirteen years as a felony trial lawyer in the state's attorney's office and i know statements the witness testified to that the defendant made were bold statements that were identified at the hearing in the motion limit now was it for a little you know did i give you piece of paper with the defendant made the following statements no the it was substantially complied with it doesn't comply with in a formal written manner but it was the statements were identified the statements offered the trial were identif and only those statements were offered a trial and with respect as i said to that to this statement some of the system states attorneys in an opening statement i think the jury was properly instruct answer is yes i think the four twelve substantially complied with and as the claim is entirely speculative  but the point is this is the firm that cannot demonstrate prejudice from a not undisclosed statement where no undisclosed statement was offered at trial and nor objection was made to any statement that was offered at trial so i believe eighteen the four twelve was substantially complied with and b the from that cannot establish any prejudice as a result even if there were a violation of for twelve therefore very briefly just to test first counsel's point that it's possible that there was some conversation between defense counsel and the state's attorney after this hearing the defense counsel brought this up and the motion for a new trial and specifically stated that the state was required to disclose the statements and never did believe that it would like to think that abiding by ethics and ensuring there are grounds for the for the arguments that were being made in the motion for new trial that comes with that it said that if they had stated actually there after that i do believe that it's a disingenuous reading of the facts to say that there was substantial compliance because something was disclosed at its hearing six months earlier and that was an umbrella that covered everything that came forth a trial at that hearing the complaining witness didn't testify she presumably wasn't prepared to testify at that at that hearing and very few statements came out during that hearing the state basically relied on the police reports in order to make its argument that other crimes evidence should be admissible then become the morning of trial state specifically says we have learned of additional statements which were not in the police reports i think it's quite clear that there were new statements which the state should have disclosed it which it failed to do which it which it failed to disclose to the state to the defendant upon the defendant's request to do believe that it's a fairly clear violation of rule four twelve in this case and insofar as objecting to the statements that were made during trial that certainly would  make your job easier my job easier if defense counsel had objected each time a new statement came to light during trial however the judge had already made his position on this matter fairly clear the state defense counsel had just presented a fairly doesn't have those statements and arguably rendering any objection at the trial somewhat he trial because we already know the judge is under the miss perception that the statements were not discoverable and thus arguably not objectionable isn't at trial so i do i think that because counsel chose not to object to the litany of statements that were attributed to mr miles over the course of the complaining witness is testimony that that necessarily means that all these statements were either disclosed or that i would i would reiterate that the responsibility in this case was with the state the rule specifically says that the state is required to disclose all state of the substance of all statements which are attributable to the defendant's not necessarily those that they definitely plan to come up the trial all statements that is the state's responsibility in this case and though we say fear that the judge is the is the actual culprit the one who intervened and made the statement and kind of cut the state off