thought that mr stocky was going to sleep with one of the boxes friends girlfriends so to prevent that mr box created a disturbance outside the girlfriend's trailer that disturbance caused m to step outside once mr stocky stepped outside mr buck sucker punched him in the face mr stocky pulled out a pocket knife flipped it open and stabbed mr potts in the abdomen the dispute in this case is over what happened in the the few moments between mr bach sucker punching mr stack in the face and mr sack of stabbing mr box the state's version of those few moments is based on the testimony of one of mr boxes coworkers brandon hyde and of the friends girlfriend both of them testified that mr box stepped backwards after striking mr stack in the face so that mr stocky had to advance to stab him of course the coworker was a convicted felon and the growth friend had failed to tell the police that mr fox it stepped back moment after oops struck mr stock and mr stack in contrast testified that mr boxer skilling dancing upon him and preparing to hit mr stack in the head again the state argued in this case that the testimony of the two witnesses the girlfriend of a coworker showed that mr stocky did not act in self defense because since mr box it stepped backward the assault was over and they highlighted the fact that it was two to one no one was able to corroborate mr stack is testimony oxer still advancing precluded argument i mean i'm not positive it may have been defense counsel thought he had some other evidence but the evidence to support because ation claim was then but the main thing she did was directed a verdict from the state on that by saying fast counsel you flat out can't argue that mr stocky did not cause the death and the evidence supporting that of course was mr boxes highly agitated intoxicated state his refusal to accept ordinary medical treatment checking himself out of the hospital against the doctor and i just want to be clear that there is not some evidence you claim he depends offer that was the the quote was prohibited from introduce it's more than the  argument again it's hard she also said she also told the court told the house so you just can't get into that issue and it's not clear what counsel would have done what other evidence he would allow the fans counsel based on the argument and the evidence that was presented to make any sort of argument that that showed that mr stack he was not responsible for mr boxes death it doesn't do you any good to have causation evidence in the case if you can't point out to the jury that it shows that mr stack is not guilty of the state was permitted to argue that mr stack it caused this his death it was completely one sided ruling to sustain an objection to that this morning come out well the courts sustain an objection then to the question yes and the jury was instructed to disregard testimony that you know objections were sustained to into the groceries no you answered the question that that's how that's the only way you could make a non responsive objection is if you did answer the question and then the course sustain the objection and they were instructed to disregard testimony that had been objecting where an objection had been sustained and the first the first statement that was object with that were the objection was sustained to was the doctor's testimony that he was afraid that his head would be knocked off by mr box and that's very prejudicial you know it's very favorable for the defense that showed that mr box was engaged in exactly the same type of behavior after he's been stabbed while he's in the hospital with somebody who's trying to help it you know he punched mr stock in the face and now he's trying to knock the doctor's head off it's very very relevant to mr stock his argument that mr han testimony that mr box was still the aggressor a jury could reasonably concise conclude that you know mr box is willing to try and punch dr who's helping him in the hospital that he's not the type of gentleman who was going to be satisfied with punching mr stocky one time and then backing off and saying oh it's all over it's very corroborative of his file and nature of the doctor they confronted in the hospital is because ferrie probative of mr stasis testimony that mr bison still coming at him when he stabbed him and the other testimony that was stricken doctor they said that he scared me and that's important because you know if dr de feared mr potts in the hospital it's quite reasonable the jury could have concluded it was very reasonable that mr stocky still feared and reasonably feared mr box after he'd been punched and that justifies his use of potentially lethal force how and the same it as far as showing how phyla what a file an individual mr box was the court also refused to let the defense present corroborating testimony from two people who had seen mr box sucker punch a man in  tavern in january about six months before this mr stack he was permitted to testify i saw mr box call a man over sucker punched him knocked him polled the man hit the concrete floor mr box turned around and there but there were two other witnesses who saw that and the defense wanted to present their testimony out the court got sidetracked here there's there are two purposes for lunch evidence which is what violent heat behavior is you know the first is to show that mr box was the aggressor by showing he has a history of violent behavior and the second would be to show what mr stocky particularly knew in regard to how reasonable mr stack each belief was that the battery was going to continue now the court was misled because the state said we're not going to argue that mr box was not the aggressor we're going to concede that so therefore the court ruled well the first product launches out you can't present tell evidence just to show that mr boxes file because the states and i can argue he's aggressive the course said therefore you can only present evidence of his violence in the personal knowledge of mr stocky and the court decided that the other two witnesses who saw this couldn't provide any testimony that had any bearing on mr stockton's personal knowledge it was their requests for an offer of proof on that testimony from the other two witnesses y i don't think there's any dispute about whether or not they saw it that's not been disputed it was only the state only argued it's not relevant to the state ever present any evidence or argument contrary to this th testimony but it's not reasonable to preclude any witness from from corroborating his testimony maybe of this only one witness said be fine too he wasn't asking to call a lot of witnesses and it's important to corroborate a person's testimony i don't know any state's attorney who would try to corroborate their the victim's testimony at and this is a far cry from the you know someplace where where there's just all this cumulative testimony that's what i asked was that there's some argument made by the state that the earlier the defendant talk about this prayer incident but don't believe him i think the defendant's word is always in doubt in a case like no so i turned it is for questions with specifics of was there any argument any reason why one person's testimony would be such a sideshow that it should be eliminated but moving on to the second point you know the state re neg down its promise to not argue that mr box with  you know they didn't say mr box was not the dresser they cited the co worker's testimony and they cited the girlfriend's testimony and they said mr stacking was not acting in self defense because mr box it step backward and the attack  terminate so the incorrect ruling was caused directly by the state's in correct promised that they would not contest that point and at that point i mean that came out in the closing argument i don't know what the judge could have done  about it that point but that's that's highly prejudicial because evidence that you know mr box is the kind of person who would sucker punch anybody shows as violent behavior and that's directly relevant to the first prong of the list that he's more likely to be the aggressor because he's a violent person and that's more likely to show that he did not step back like the state witnesses claim it's also very role that it shows a one punch can knock a man out mr box is a big strong man who cannot command out so it's relevant to the argument of whether or not mr stocky can reasonably expect that he's going to receive great bodily harm at the hands of mr box you know this is a self defense case mr stocky apparently would the way things turned out he would have been better off standing there and letting mr boxing beat him to a pole because but we're not going to go you know he's entitle that is not just this proportionate for him to pull out a knife when a man sucker punches him in the face a man he knows it's capable of knocking another man out it's not a disproportionate response that brings me to the next issue that i want to talk about and that was issue five and that was the state's closing argument you know i don't know mr white tough but it seemed to me that throughout the proceedings at least for the prosecutors he was a very unpopular individual boxers front accused him of not liking people lived in trailers that he started making fun of and for how he talked he's our point to use a sixteen cylinder words i don't understand half of them if i did i wouldn't use them mens r percipient knowledge and bishop sharing he said i don't know whether or not we were in a biology or speech class he's just making fun of defense counsel finally moved down to how mr up white cough after yelling screaming pounding should object if he thinks it's a spirit good the defense counsel gets any of these rumors no absolutely not and he probably shouldn't have he's already being labeled a leader as you know a snob now now what is he going to do is going to be labeled you know then skinned so it's a reasonable decision to not object to that and you know it's just like you don't have to object to a trial judge's error if it's going to irritate the thing objecting he could reasonably decided that it would have made the situation worse it would have made him look even like the worst person and it would have distracted the jury from the closeness of the evidence even more so i don't think you can excuse  state's argument based upon defense counsel's entirely weak reasonable decision to not respond to it and to just let it go and i would point out that he objected to it in his in his post trial motion said that this argument wasn't proper the statement trying to justify it they just argued it was harmless in the trial court did nothing about so there was one chance anyway that would have prejudice mr stack in front of the jury to cure this  n the other side of jerks there are all kinds of things the trial judge could do to stop it and to correct it and really even deprive the party of making the allegedly improper argument of any benefits from moving so or like the other view  trail judge you're sitting there in you hear nothing now the question is do i really intervene to a sponsor exactly like the supreme court suggested a new us feel young when you have situations like that that are to falling into this you know kind of in terrorists situation when you have a toxic situation in the courtroom the trial judge the supreme courts as a supposed to step in and defuse the situation it's so this was toxic that's a pretty outrageous closing argument i think you know i'm sorry i think it is and i do think it's toxic and i do again it's a close case you know defendants have enough problems without the prosecution of mr parkinson was an experience attorney when i started thirty two years ago and you know he knows what he's doing it's not somebody who's new making a mistake and in any event the relief i'm requesting here and i didn't talk about it was a new trial based there is no need for every man and said what the defendant says is that he was prejudiced and should receive discharge because of his theory that had counsel raised a speedy trial objection for trial in this case time so every offense that she was in jeopardy of being convicted of for murder at that time would have been in violation of a speedy trial rule that existed back in one thousand and five in one thousand and six however in this case he was under that situation the second degree murder offense never was subject to a speedy trial dismissal and when the defendant claims that the only thing the prosecutors could have done after a speedy trial dismissal would be to file the charge which stay on aced the here and second appeal decided to invoke an exception i think it was the law of the case rule differently and said that this was subject to this situation was subject to the williams pool because they deem second degree murder to also that this is not a situation for applying the rationale to william school nurse were reasons why and this is awesome something that a defense attorney could have had a doubt as to whether williams would like in this situation first of all the defendant starts out with an express unqualified waiver of the stache very speedy trial rights and why because reason number two the defense wanted these continuances for forensic testing because of the importance the significance and seriousness of the case charges in the case so even if this that the record actually confirms this is exactly what happened very very soon after they get this disclosure from the defense they realize that the concession of the mitigating factor of provocation was inconsistent with the defendant's claim wouldn't be any any prejudice at all if williams does not apply that's on that issue i'd like to move on to causation very briefly with respect to the causation issue this is not a flat out bar of conservation issue of causation evidence and argument this is a situation where the trial court suspected that there might be some problems with evidence an argument on station in the trial forthcoming so there far but for the trial started required the defense to make an offer of proof on any evidence of causation before trial and then once the trial began was beginning they realized the defense had offered no evidence in an offer proof on the issue of causation and victim status has to be completely unrelated to any activity cues and so only attributable to a secondary agency not at all induced by a primary one and this is not withstanding the issue of whether mr box was competent enough to refuse in that street even if he incompetent it doesn't really matter that issue is irrelevant because only and if there is evidence that his death was completely unrelated to the stabbing and of course he has he died of septic shock and acute period tonight is because he was stabbed in emphasizing the prosecutor made some sort of pretrial concession about to defend it i'm sorry the victim box being the aggressor well the page she cites in the record contains three references to the word exact aggressor all preceded by the witnesses was that mr box was was either retreated or the defendant had to approach mr box in order to stab him and in which case the the idea of who was the aggressor at the moment the stabbing could have changed but there's nothing in the prosecutor for marks that said that that somehow all of press related issues were were being conceded it was that he was the initial aggressor and that was because it was undisputed that  fox had sucker punched the defendant and that is that was never an issue and the freight house tavern witnesses alleged witnesses mr moore and i'm sorry more and fox with their names  mr box that he would be in fear of further batteries and even if he was in fear of another battery from this intoxicated man if the defendant's testimony were believed that m approaching to strike him in the face again even the sucker punch the corner that the fence on admissions was cause a prednisone slight bruising in his face this is not anywhere close to a situation where the defendant could have had a reasonable stabbing mr box in the abdomen with the plane that we penetrated about three inches they think into his stomach cavity was necessary to prevent imminent death or great bodily harm so there was  in the evidence if you can if the court would weigh the credibility of the competing witnesses as to whether the defendant was had to step back or bird or was still standing his ground at the time of the stabbing but it doesn't really matter i'm a speedy trial the nagel case civically holds that if a charges dismissed due to a speedy trial violation the defendant cannot subsequently peach or tried on any charge under which he was in  second degree murder could not here's what happens this goes away assuming this is the trial violation this goes away this conviction it's all got the state because they dismissed the second degree murder would have to refile and that's what specifically prohibits because he was subject he was at peril of being convicted of that original second degree murder based on this now invalid first degree murder charge and nagel says you can now refile that charge a crime for which he was first committed it talks about another offense second degree murder is a different offense from first degree murder that's that's that's my point and that's what nagel talks about a different offen