your honor what we have up before the courts today is the appeal of a denial of the justifiable request for a very short continue and a trial which might take which my what we look at is is if you think that goes to the trial charges i'm concerned about whether mr makki whatever appear on his own now and i don't i do not and i don't think the question is whether mr would be of any age in the court i can inform the court the basis for may well let me ask you this is there anything in the record that would suggest that the concern expressed by judge brown has the likelihood of mr are diametrically opposed one pointing the finger at his brother the other pointing the finger at himself imo how can we say the which version he would testify to but i think that was under oath the other amendment right i see no reason to put him before the jury therefore you're back in the very same position you were in before and then and that is that that's really where the possibility here is so the trial that you say is the defendant's right would be identical to the trial he's already had but i believe the defendant has a right to actually go through and find out what the case how it unfolded i don't think we tried the fact is based upon what we the testimony going to be we try  to trial i can assure you that there are many many cases out there where he witnesses have never been brought to the t have their testimony heard it happens all the time i understand that but we have the right your honor and the right to a fair trial which includes the opportunity to present witnesses in your behalf and also have the duty of in this way first of all the record this is the silence really as to what transpired during the last three years and just as the record has i can't come up to you without explaining what happened in the year were abundantly clear who what the record establishes is that four days but we do know that four days prior to the trial we located him in fort worth texas and at that point we in view of the short continuance and the materiality of this witness i think it was clear air for the judge to deny the request it just never got into the seriousness of the charge and that was one motion by the fact for a continuance this is not a case where the defense made repeated motions for continuances try to delay the trial your honor this is a situation where we have a material witness examination which would you know certainly way towards a mission of that the record was silent regarding the for your intent and that's the problem here is that it was as the moving party it was his duty his job and his bird it showed that he had made efforts but in both the written motion am sure they he may have been a material witness but you do now that he would have been a witness and shown up in court on the date that the council is saying because he was unable to provide anything in fact he said i don't think he'll  and that doesn't the statute provides that in light of the diligence shown by defense counsel a continuance may be granted but it goes back to that are you saying that the reason this was continued for three years was because of the defendant material witness he was not able to meet his burden and so we're looking at that tape that we was set to go to trial in four days from then and on that take he not me is burning in light of the diligence and it again the statute provides that it's was again denying emotional reconsider and so this is it a walker case is that this isn't a case where the trial court mechanically denies it or reflexive lee denies it are the words that the court used and walker this isn't one of those cases this is one where the court considered all the factors he questioned defense counsel he big defense counsel give me some sort of good faith basis that you can show that this guy will come into court will testify  attempts have been made in defense counsel didn't provide any and in light of that the judge did not accuse its discretion at all and in denying defendant's motion furthermore it's defendant's burden right now to show that he was prejudiced and as you stated earlier there and the record there is no evidence at all that he ever requested for eight continuance again he never achieved this on those witnesses he was never able to procure this witness's attendance and there were six states between the trial between the end of the trial and the post trial motion six months later and in th suggestion of mr mack and she was ever able to be located and that goes to the prejudice furthermore even if the witness even if mr mack it's he had shown up first of all in illinois and then shown up in court he could have done one of three things and the lineups and everything else the third thing he could have done is the witness could have taken the stand and said defendant did it and besides being you know one of the worst defense witnesses ever if he says defend it was it was made to defense counsel an investigator there was no opportunity for cross examination there was no crowd rationed by any sort of evidence that fried maggots he was the shooter instead everything funny the whole ar an automatic if you say a witness come will come in they will grant a continuance it's out to the discretion of the trial court and it's up to the in light of intelligent shown by defense and they didn't show any diligence they never showed show up he may be in illinois two weeks from now that's not saying that he's going to come in and be a witness and that's not saying that over the course of three years you were tempted to get this witness and before and so be it witness that was saying something different than he had ever said before and the prosecution and the people had no opportunity cross examine him faired it wasn't crabbe rated by independent evidence the i believe it could be self incriminating however and looking at the other reliability he doesn't he's not walking into law enforcement and saying i he did it he's out of the jurisdiction he's there is as defense counsel and it could be however he kind of minimizes his involvement in making a sort of self defense argument and he states that i mean that he has the ability to remain outside the court's jurisdiction and his interest in maintaining his liberty has not been endangered because he's never come in ellen why no one has been able to find him and so yes it could be very and could be a statement against you know interest but i think on its face it's kind of i mean it's a completely one way or the other and i think that it goes to also is that he's not making this he's not coming in and making a statement to anyone in illinois anyone that has any ability to to move on this event any sort of law enforcement prosecution anything and so i think it's not necessarily a definite against his interest reliability from the viewpoint of defense counsel because or based on their failure to tender it for almost three years if it did a really reliable statement you would think that defense counsel would be running into the office of the state's attorney with this expel put torrie evidence to free the wrongly accused individual