the trial in this case particularly westerfield a codefendant and testifying out considering any less severe alternatives the trial court had no reason to impose the most severe sanction in this case factor is the effectiveness less severe alternatives the second is the materiality of the witnesses testimony the outcome of the case the third is prejudice to the other party and the fourth is bad faith and i'll walk through those factors for your honour's this morning on the first factor less severe alternatives it's clear the court did not consider any less trivial turn this in this case because it moved directly to the most severe section if you look to the court's ruling the court said due to the lack of disclosure into other potential sanctions that could have cure the prejudice or deter the failure to comply for example personal sanctions for willful violation therefore we would argue that the first factor weighs favor of a finding of abuse of discretion on the second factor materiality it is clear that caylee was a material witness in this case she was a codefendant she was an occurrence witness who could have offered unique testimony about what happened between the fight between herself and lee edge the other complain testimony about the pattern of grass meant that she had experience at the hands of eight lewis which would have been relevant to the real loses motive to testify falsely as well as emily edges alone to testify falsely lewis's cross examination about that pattern so the court thought that this information was material to the therefore the second factor also weighs in favor of a finding of a use of discretion on a third factor prejudice to the other party state argued in the offer of proof that it needed an opportunity to investigate and present with bottle witnesses however the state was currently prosecuting only westerfield at the time my class trial began it has every incentive to investigate and locate those rebuttal witnesses and in fact caylee westerfield in her own trial could have decided to testify on the eve of her therefore the state had to be prepared in addition me ask you this question you're claiming on appeal that the trial court improperly argues it's free and i believe what you're referring to here is that defense counsel to offer proof didn't make two arguments to make the argument that caylee westerfield was an occurrence witness and didn't make the argument that caylee's testimony would have gone to show that there w testimony would have gone to caves and truthfulness to his motive to lie she also stated that gave the lurd my client and caylee westerly out of the residence and they concocted the story about the attack so we argued that the offer was adequate and there was counsel said she was just notify the caylee westerfield's counsel said she would be willing to testify which is indeed a rare occurrence  testify in this case therefore it's clear on the record that her testimony was relevant council doesn't need to make in the offer of proof and argument about every natural and friends and see the problem is we don't know public court what testimony was it issue that's a former offer group informal offer proof can be made when counsel makes representations about what the what this is case that when it's clear on its face of the testimony is relevant the counsel does not need to make an extensive offer proof about that testimony in this case the offer of proof was we would argue complete and raise those two issues  c argues we didn't raise which was that she was an occurrence witness and also that she would provide testimony about the conspiracy in this case so the court had to do to conduct an inquiry especially where in this case was an occurrence witness a key witness an code and our client had the right to present witnesses in his defense moving on to the fourth factor i would like to address account for the court today bad faith it's clear that was not trying to affect unfair surprise wasn't trying to and wasn't trying to deliberately ambush the state in this case because counsel disclosed to the state prior to jury selection that caylee westerfield w witness and if you look at the offer of proof counsel was baffled by the fact that the state argued that they were not on notice because it was all over their discovery we would argue your honour's that this case on all fours with this case people view scott which we address one other argument the state mentions in its brief in its response which is harmless air and i have argued extensively just now but i'll continue that caylee's testimony was unique she was an occurrence witness she could have provided unique testimony as a codefendant about the fight that occurred between her and emily and she could have provided information about the conspiracy to frame my client when there are only two witnesses who implicated my client and those two witnesses had an axe to grind in addition she could have provided unique testimony about the pattern of grass make and that pattern of harassment would have increased the possibility of my client's defense finally the jury had questions about the evidence in this case the jury questions about the theory of accountability and we know this because the jury submitted jury questions about my finance clothing and about his voice whether they could convict him on accountability the only evidence in this case  against him and also that there is a pending the mystic battery charge in this case haley could have provided additional facts about the pattern of harassment the fact that gave ran into her car the fact that he popped her tires that he smashed her windshield and he threw kitty litter at her car this pattern of harassment that wasn't a occurred during the fight so whether or not he had her harassment was actually addressed slightly during gave testimony she had unique testimony to offer as an occurrence witness so we would argue that this was not harmless error in conclusion your honour's this is a case about the exclusion of a key defense witness the trial court didn't consider any less severe turner this before imposing the most severe sanction and the court had no reason to impose that sanction because the state was on if i don't like the offer of proof instead of rejecting it i have to conduct a mini seminar on this is what you need to do you need to actually ask me to have that witness sworn in testify outside presence the jury exactly what she would testify to subject to oath and subject to being asked questions i have to do a lot of trial court experience up here judges have a lot of things they have to do and we do this in concert with counsel so constant counsel makes a skimpy offer proof which would be deemed to be informal in counsel s alternative other than what the judge did but somehow that should not go down to be betterment of the defendant in terms of hey you got to help us with this truck your defense suppose well your honor i would first say that's cracked that we have a concomitant duty but also the court has a duty to inquire before imposing the most severe sanction the other supreme court has said this is i have a duty to inquire he what can i do that would serve your purpose but be nice to the state and you know if you want a couple hours i'm supposed to propose that inquiry into the potential prejudice of caylee being presented as a we've also argued that this court by its that defense counsel didn't do its duty in this case that it was ineffective assistance of counsel for failure to disclose that that was objective we are reasonable and that the performance in this case was not initially this they would like to know that it was not before workers were just beat up a bit so sorry initially the state would like to point out that it was not before jury selection that the defense informed the state of its intent to call westerfield it was at the end of the day of jury selection and the next day the prosecutor informed the trial court this trial was about to start that the night before defense counsel has informed the state that it wanted to guilty in exchange for facilitating the criminal justice system and now it's going to be a state's witness testify against force and it happened this afternoon and we want to put them on for trial this during the course of this trial and of course there was little discovery provided that her for it was going to be justified because until decided to plead guilty and  might flip and testify against mica who do you think a judge would buy that well the cases that we have relied on in the cases that i know about city have to disclose it's not a standard of oh you should have church someone might turn witness for the other side if there's usually it's for stacy but it might as in this case this is the friends with the sand said she was a key witness in the upper room all of the offer proof had to do with all the prior that had to do with throwing the kitty there are all of these things that is the prosecutor pointed out we don't even know if those things happen we don't when we have to connect it up with a purpose that dependent now argues on appeal that that was relevant for and in fact was able to elicit all this other testimony about the frame up there the only thing that that tends counsel are huge in the offer proof that remotely related to that purpose was the statement louis ultimately lured all the individuals out and claimed to have been attacked they offer proof didn't say well she's going to  westerfield didn't talk about this frame up theory there was a prima theory if it talked about lewis's motive to lie and why he was out there any evidence is going to be offered i don't think that there should be a concern because the prosecutor did talk about how it would be prejudice they had to part it would have to call these other witnesses we don't even know these events occurred we would have to call police officers officers to testify about what happened we don't have time for that the jury has already been selected and the court is not required to both through and your eyes are discussing with closing counsel all of these no we didn't even they're surprised we didn't know that she would testify we had no reason to know she would testify and on top of that we would have to call these other witnesses to rebut her testimony or talk about these events and then the trial  availability to test the record shows that the defense counsel knew about what she would have said back in december when the stacey it's not my question she stars it's a crime she's not going to testify unless  you know the night before because presumably that i don't i don't know that that would be determinative however with respect where you've been helpful as well as the trial counsel said sprouse clearly can i interview this witness directing her to be available for interviews and see wh this disclosure and if you disclose on the morning of trial it's very hard to show that yes there should be some continuance granted to interview the witness and all these other witnesses who would have to be interviewed in order to  put on their testimony but the very stuff that the state claims here is such a surprise so difficult to deal with wasn't that the very stuff that westerfield in her own case was going to be presented and h kitty litter that yes think about i mean you know and here's a codefendant is going to go to trial right now how big a surprise is it to this oh gee we were surprised at all this we have to figure out who we're going well the record doesn't show what things that she would have been testifying about in her trial and the standard is that you have to disclose that the state is saying that it's it's prejudiced th is what she had said earlier than she gives a statement talk about all this i'm not sure what you're talking about there's no statement in the record that i'm aware of where she talked about oh well maybe it was from the other witnesses who were talking about this so we object on the grounds that we're surprised wouldn't the trial court you know this trial judge said how can you be surprised when well you should always expect that they called the plan that might  flip well that's not the standard pretty busy discretion effectors though through their four factors we went through those in our brief you know that's kind of beside the point whether or not either side was surprised or the you know the state or in your in the trial which is not required to go through you know all the other thing so all the factors that may have gone into them the state did represent this is why it's prejudicial and this the court was well aware that the jury had already been called it was the morning witnesses to testify about these events we don't even know that they would they would exist and also so it would result in a mini trial if they said on collateral matters it's wise to speed versus just  just a few points on rebuttal the state makes much of the fact that the timing of disclosure was after jury selection we would argue that it's a reasonable inference from the record that this disclosure happened prior to jury selection if you look at the supplemental record and that supplement our record page ten the trial court included caylee westerfield on the list of potential witnesses when it conducted war gear so it's reasonable to assume the counsel disclosed to the westerfield who is request at his request that's not clear severe sanction should not have been imposed especially when the state waited to argue prejudice until the next day after jury selection had been completed and had an opportunity to argue prejudice on the day before we'd also argue in the offer of proof your honour's of the state knew that caylee westerfield had testimony that was relevant to the occurrence witness because and i will quote the state said and now apparently caylee westerfield is not only going to testify but going to testify about collateral prior bad acts so the state knew that she was a potential witnesses for two possible purposes so we argue that the offer of proof was sufficient in addition the state just argued that caylee westerfield doesn't have a witness statement in the record but it's clear the offer of proof and the state didn't contest that caylee westerfield made a statement on d v d and that the state disclosed that statement to us during its discovery so they knew what kelly was going to say and it is that her actual statement isn't part of the record but the fact that she gave a statement to police and that that was disclosed on the d v d to defense counsel is a part of that do we know when that was given when it was given just after the occurrence you actually gave two statements one she true subject of these representations were the from scratch or would have been consistent with her story i think it is a reasonable inference that would have been consistent or defense counsel wouldn't have offered her as a witness for the defense it's also reasonable to infer that she would have offered very helpful testimony to defense or the defense wouldn't have called her as a witness i would also say that that state does not address the fact that the state the current  in my client's case is currently prosecuting caylee westerfield there's no possibility of prejudice as your honour's created in your questions because he was currently engaged in that very trial kelly westerfield he had to be prepared to get every incentive to when the defense side present its case to the sea and actually concluded its entire case at the time of my client's trial and that trial heard in april again march fourth was the first day of caylee westerfield's trial finally i would point out your a more severe sanction in this case especially work really was a codefendant where she had to for go and go through a number of different hoops more so than another witness to decide to testify in this case so for all of those reasons and the reason stated in our brief we asked that this court