seventeen was tried as adults and at the bench trial he was not not found guilty of either first reprieve meditator murder second degree intentional murder voluntary or involuntary manslaughter although he is obviously guilty of one of those and should have been punished but what did happen is mr moore was sentenced to life based on a theory that the felony murder theory based on the idea that he had was attempting to kidnap people in the truck  the failure to interview and then call burks the driver of one of the cars right and that person allegedly would have testified that there weren't three people outside the car trying to impede hannah from driving back onto the highway  the what i'm trying to figure out is why is that a slender reed why i'm trying to figure out how it's even that important to the case in this sense you've got these three cars going down the road one ends up in front of the truck to end up behind it they clearly boxen in doesn't seem to me there's any dispute about that and your client is standing in front of the truck pointing his gun at the car saying we got him now and it seems to me that at that point the restraint of the occupants of that truck is or at least the attempted restraint of the occupants of that truck is completely ignoring what happened as she evades them and goes across the median and then back out  mr moore's actions chasing someone around with a gun is not a time to kill but i agree that if the story's arriving down the highway as you say firing wildly which doesn't seem to be supported by the record seem to be pretty intentionally easy to get the was trying to tell you damning at the track and he's a pretty good shot so he goes around the truck any any stops in the in the road so right at that point i'm just trying to figure out why is there not the restraint or attempted restraint necessary for kidnapping even if there's the person isn't boxed in or both lanes of the road are not stopped i mean you're not going to drive by somebody that has a gun pointing at you presumably well that's right the gun is always blocking off one one of flight the gun where you know when they stop in front it's really no different than when they're behind chasing the truck the guy with the gun is always restricting the trucks and when the truck stops i was to try to stop because they're changing drivers now but the point the people in the car didn't even know what had happened and they may think well the truck stopping because they're going to pull in those parking lot and have a fight or something i don't know that but they stop because the truck stops and they continue their chase it's like someone run a square you're always chasing them around and you're always blocking off when when you're chasing them you haven't kidnapped them or tempted to kidnap and when you actually succeed in stopping them is there a sufficient restraint at that point to me it took two to factually make him guilty independent of what happened when they were driving through the greenery i don't think that i did not find any cases you know the closest thing under tennessee law is cases where people are convicted of a kidnap and an assault at the same time  think i think the whole case or it was always going to loop back to this is activist groups is testimony important because if if there's a reasonable possibility it would have made a difference in the trial and then i really think it's a winning strickland claim because you know there was no excuse for trial counsel not to bother pick up the phone and call this man and find out you know you gave a statement to police it looks kind of good you know what would you say and he should have had him there so i think it always loops back to the cars in front of them stop for a minute all right so even had he been called if he hadn't been in he even at the martinez hearing he said he saw the garden's car was stopped in front of the truck on the highway right so subsequently three men actually got out of the car and all right but he would have conceded that the car was stopped and that the state court of appeals when they were cite the facts in page thirteen they don't mention anything about three men getting out of the car and blocking the way they just recite that that light blue car came to a complete stop in the middle of the road in front of the west germans car westerman struck in she goes off the road and through the ditch and into this parking lot i suppose if there was a ten car wide exit to go back on to the highway one could say that one car parked over on the side of that isn't in any way blocking the access that she had to go back onto the road but we we don't know that or you may know that we don't know that how was it just a one car accident to go back out in which case it would make no difference whether the men of westerns turned around and here in the middle and then there's bill car people blocking one of the but if she wasn't blacked why did she have to go through the ditch again to get back on the highway is immaterial the the kidnapping at this point had been had been certainly are the attempted kidnapping certainly been affected as they got the truck stopped they boxed in the truck and stopped on the highway is it clear under tennessee law that merely having effectuated the stop of the car regardless of whether there were other avenues of escape which she clearly had that that restrain or attempted restraint constitutes kidnapping under tennessee law yes  a substantial interference with their liberty and that they stop her from the front of the cars were behind her so she can't reverse to safety the only thing she could do and this was unrebutted was that she had to go through a ditch to get away and what the briefing talks about her being charged and convicted of of attempting to interfere with the liberty of hanna westerman and curious about that is was that the theory of the state because it seems odd that you would be claiming that they were trying to interfere with the with the passenger as opposed to the driver who is the fellow that they were met i believe it was interfering with both of them are western is not just mrs not just her that's correct i think that we're really not in a position to to tell the state courts that they interpreted the tennessee statute incorrectly are we i mean that's really what we defer to is a that's true there is that deference there your honor tennessee law interprets their own correct i mean you know what attempted kidnapping in michigan may be a lot different but what it is in tennessee it's the side about tennessee court that's correct and evidence was certainly sufficient we accept that that under tennessee law a brief moment carry the stopping of the vehicle qualified to attempt kidnapping but the parents also making the argument that the of fact should have been able to weigh whether or not there was also this the three men jumping out because clearly if three men jump out it's a simple case aren't they not only stopped are there but they're trying to shoot her then she has to turn around and go another way that's a much more compelling argument for attempted kidnapping agree that may have that could strengthen the case i would say would make it much more compelling i think i think makes it more compelling to me and a good judge decided this so telling to saying that that that testimony would have absolutely been refuted by burke's that he'd been called and the trier of fact wayne that first and say was in a close call it was not a close call even if you take away whether anyone got out of any of the cars or not that the fact that the the petitioner here he instructed the driver to catch up to the western to instructed them to pass the western means he shot at the western is all the way from behind to the side when the car stopped in the middle of the road in front of them he leaned out the window said i've got you now and shot at them there with his with his friends now stopped behind the truck so the truck was effectively stopped both from the front and the back in a two lane highway and the only thing that mrs westerman could do at that point was to go through a ditch into a parking lot to try to escape back to kentucky to get her husband medical attention right there i think there is a very strong very compelling case by the state whether or not anyone got in or out of the truck and in her going into the ditch they may have photographs of that but the testimony was was that somehow this would impeach hanno westerman not only with respect to what she said about three men getting out of the truck but somehow impeach her overall testimony and if i understood that was or insinuated i wasn't really i was having trouble figuring out why that would be true because it seems like the facts of what happened on the highway were undisputed in this case it was really what happened after she tried to evade them i right about that i would agree with that your honor that's corroborated by the veriest testimony at trial including the defendant's and codify so any point including the cross examination of mrs westerman was there any attempt to impeach her testimony prior to what happened when she tried to evade the  i don't recall whether there is any significant effort impeachments there may have been on small details here and there but i don't recall anything significant the facts of the chase are pretty much corroborated by everyone why the chase happened who was in which car what with the order of the significant all is whether someone got out of the cars after they stopped the truck but i think what's really significant about this is let's say a true activist burks testified at the hearing no one got out of the cars there was no time to get out of the cars while the truck was turning around this is significant because mark is darden was octavius burks his passenger it was the person in his own car who got out to the defendant's trial testified to it so there is some corroboration that at least one person got out of a car it was octavia's percs his own passenger so the issue as a general matter is immaterial but even if that were to come out of that if it hasn't come out that impeachment come out i don't think there's a reasonable probability that that would have made any difference because we have to the defense who had the most incentive to say something to testify favorably on their behalf corroborated that at least one person got out of the cars ms result th birches his proposed testimony certainly was not was not significant and it would there is no reasonable probability of altering the outcome of the trial where the evidence was very solid in the case was very compelling as a result of the host nation council so it was was not ineffective for failing to bring up that claim and post conviction in truck council was not ineffective for failing to investigate and call mr burke's in that regard  if the court amenable there was one last issue which other side did not bring up to twenty dressed briefly and that was the cause they defaulted due process equal protection claim  hodges is limited to defaulted claims of ineffective assistance of trial counsel so martinez is doesn't does not serve excuse and secondly said that he said he had no opportunity to raise the claim that is also incorrect after this the tennessee supreme court for the last time denied review in its discretion he went back to the post conviction court post conviction court said do you have any further claims to raise now that this is happening that you hear your direct appeals been finally denied and he said no he had the opportunity so he cannot say that he was failed to provide field have an opportunity to raise the claim in state court that claims to faulted time of trial your client won those issues i mean really so here goes for whatever reason he's found not guilty of the more serious but i don't know how it applied to the attempted kidnapping that's all highway was there really any factual dispute in this case aside from whether one two three or nine got out of the car i think not not really are i think the gist of it was all pretty much the same  testified you know everyone was in their proper going to traffic she said she didn't have to stop ever completely come to a stop you conceded earlier in your argument that the truck must have stopped at least momentarily because somehow they switched places i  and he was like whoa what's what's going on so you know and i went through carefully my reply brief and explain why there's just no conflict in mr bruce's testimony mr morals and no one claimed the mr brooks and got there in time to help block his westerman from behind that if anyone helped block or it could have only been the second car and you know i you you know the state is are saying there's a very very compelling case for kidnapping and i think that's far from the truth i really do think it was a close call and i don't even think i mean it's somewhat surprising the even brought this what what else would would they have been trying to do by stopping their vehicles and trying to get the pickup truck to stop i mean they weren't there to shake hands or anything but they were either there to restrain her liberty or maybe to kill or i mean what what what what else would would have been the intent of trying to stop him going yes they're driving and shooting trying to scare them maybe trying to hurt them you know the they were chasing them and shooting them and they want it wanted to have that truck stop the the liberty of as i said you know i'm going to defer to tennessee courts as to what what the elements of attempted kidnapping are under the tennessee statute and there is sufficient evidence well it's as though there is a vision evidence w but it's a close call you know and i've said the tennessee case low showing when all you have is very big or ambiguous conduct that could be either an assault or a kidnapping or robbery or kidnapping that's often found to be not enough and so that i think is a