good morning runners my name is robert byrd from your state of health bender and i'm here this morning representing the defendant tyrone everhart promise you i will not use the phrase no wish material but as the court's familiar this case mr ever pointer yes i mean it does happen but let me point out several things that we talk about this just being some kind of comic earth we're not talking about from the jury that some witness some technical witnessed some you know some witnesses the might my point is you don't want to just isolate this promise from all the other things that are connected to his taking the stand because there are maybe in this situation the only thing he really had oh you knew that the d n a was coming in before the jury was ever selected right he knew that that state was coming before the jury was ever selected and if he had even a little knowledge of the law he knew that only mr everhart could decide whether to take the s counsel let me ask you this up i do you are you because of your position about how the the fact that he changed his mind or the fact that he counseled his client not to testify after promising the jury that he would testify and you seemed to be suggesting that once the promises made the promise must be kept and you wonder whether we wouldn't be here now arguing about counsel's ineffectiveness a judgment down the line or at the point where he has to make a decision to change his mind or to changes his position say you know i told the jury going to testify but i think that the evidence is simply her that i don't think you could handle it or i don't think he evidence you have the situation has changed such that i don't think you should testify it's up to you but that's my position now i mean can it happen can it happen yes but i think that's what happened here let me give you probability i think it changes everything here because howard still has no credibility left in front of this jury they're just going to tune him out he made the most crucial promise he could make in a criminal case involving sex with the interview or and did not back to when the officer testify no i wasn't told those things as well so it was all up and more attack on her credibility and to make that kind of attack when you started out by teaching the jury basically don't believe agree with you it's wrong and worse than prejudice what would change the outcome the evidence is overwhelming here in other words in other words had he had he made an opening statement that you were too i don't don't reach a conclusion wait until all the evidence comes in i because i can't think of anything else you would have said if you throw out consent if you without consent i don't know what the defense you can't believe that this occurred in this way and at that point it may open the door even without his testimony say you know that d n a ok and the argument he made its mission is the d n a was off of there you know they didn't test the d n a that was found on the ground there was a have a standard we have a timeframe and we should take into account when we're talking about impeaching prior convictions and that's the one comers yes ten and that's ten years and did this i think this was just outside the tent where i'm not so sure because in fact if he if he were talking about the release from ok you're going to see what our story i guess i understand i think it's one thing when you're talking about his prior convictions which are introduced for honestly i have a real difficulty understanding any limitation on propensity propensity includes identification includes mode if it includes virtually every possible reason to change to set up prior prior conviction and there's no limitation available as far as i can tell when i look at this and again that fortunate for me in this sense the rule is that propensity is out and once it gets on the stage when you look at this from that perspective all that one i recollection i believe this was part of the in the immediate run up to trial where there were a number of pretrial motions in limine and things of that nature and one of them was a motion to reconsider the ignition of that would be wrong on that but that's my recollection of this  component that makes this propensity evidence admissible if that's the part that's different what what what what what sort of analysis that we perform if we say no on the ineffectiveness but yes on the propensity and with a look at prejudice and then that the main case that you rely on just as well since case i forget the name of it i mean there they rule that it should not have been admitted but in the end affirmed the conviction well let's he was not gone until the decision was made that this offense is coming at that point now he's going to step out so there's an additional element of prejudice here that's not present in those cases and that makes this one of the again if it's a kind of a one off and i doubt that that's the kind of scenario that is going to be it would be a little more difficult for us if counsel had not agreed to withdraw i did not agree to say yes if there is a conflict here and i'm withdrawing because had he said i'm staying in so long as my counsel my clients willing to waive any conflict i'm staying in i'm going to represent him i don't want to use the word greed i want you to use the phrase falling off a store here he wanted there he was willing to do with the client was willing to waive any conflict this was something not something that he woke on the record and that's not the right about you ation under strickland this court has already addressed this very same issue in manning and determined that without evidence on the record as to why defendant didn't testify it cannot be addressed on direct appeal this is appropriate for a post conviction appeal not direct appeal issues are exactly the same as in manning just as in manning defense counsel promised the defendant would testify just as in manning defense counsel here didn't put forth any they didn't and i think that that is a stretch in this case that he encouraged his counsel not to testify after the people rested defense counsel said we have spoken to our client at length regarding the evidence to be presented in our case in chief based on our sesno of the case and defendant initially said i'm going to testify we had consensual sex defense counsel was absolutely within this rights to promise that based on what defended wanted again the only thing probably anyone you know specifically did reference that he had discussed it with counsel that it was his decision with counsel's advice that he wasn't going to testify so in both cases do you have to fence counsel's advice who knows why he gave that advice attorney has promised it true that you would testify and tell you're still persisting in your decision not to testify at the trial court here went over and over that this was defense counsel's choice could he have said you know you've already promised the jury sure but there's no obligation to the he has to and there's no obligation that defense counsel needs to put on the record the reason that invades into attorney client privilege it invades into defense strategy a little less than six years after he was released so it absolutely is within the time frame address and don ho there were substantial circumstantial similarities both attacks happened in the early morning between twelve and three a both women were attacked from behind in the parking lot this woman had i what do you think that you think most i don't know but do you think most sexual assaults occur in the early morning hours  ten and between twelve and three i mean i have no idea of this the statistic of that but that is something in where you think that's character that's at this thing distinguishing feature in this case think that it is yes oh this this is big counsel them defendants general raise that right hand take an oath to tell the truth that he's going to call this consensual he's going to tell him they had a history this isn't the first time this has happened with these two people and he's going to explain his statement that what you're going to hear from the police he told the jury all these things and he could fulfill any of the sponsors he had no credibility left when it came to closing argument when he decided in your honor scenario to switch strategies a stop what happened or offenses that dictated the result that was reached into the hole and those similarities just simply aren't here to say that while the victims were female ok there's a limitation that those similarities just don't exist here and because of that i don't see how you can call this perfect i have should thank you very much the case will be taken under