who failed to raise i would action into a conflict at trial must demonstrate his lawyers representation this has all his lawyers represented that there is an actual conflict of interests that are adversely affected his lawyers representation to show an actual conflict of interest a defendant must specify a specific date fact and trial counsel strategy tactics or decision making attributable to the conflict first and foremost an actual conflict of interest itself here by mr prosek failure to call these three witnesses these three witnesses would have provided exonerating testimony for live out for mr chris x representation of a little of our was at adversely roof adversely affected because he failed to call these witnesses because he was under an actual conflict of interest and that's my argument as much as mary grant will will show the main reasons that he that he stated the evidence you're hearing that he did not call the witnesses are not supported by the record another if they have had the same trier of fact there would have been a conflict and that quote they have a need to be separate because they needed separate trier of fact because there was a potential there that it that a jury shouldn't hear what well had to say and what we had to say per sec seven of the trial in his immediately following the shooting when this is really good by the police at that time they told the police that they were they were present for the shooting that they saw will commit to shooting their testimony at trial that their testimony at trial esses the witnesses testimony would be inconsistent with what will bell had previously told him in private and private well bell had told mr prosek the hue and when the shooting occurred he was around the corner breaking out car windows with a prosek stated that he did not call the witnesses because of their bad backgrounds in this case all of the state's witnesses and the defense witnesses were gang members had prior criminal convictions for them or only one state witness court found found mr perception credible but as i have as i've gone through here the his reasons for not calling the calling the witnesses are not supported by the record and given that  testimony in this case it was tame into mr perspex office they told him what they what they had seen him he was under there was nothing else in the record would indicate that he would knowingly would be putting forth butting forth false plus an adverse effect needs to be shown in order for conflict of interest claim to prevail following a third stage evidentiary hearing in this case counsel has our very argued that there has been an actual conflict but cannot show that there is any adverse effect now this court has not had an opportunity to define adverse effect under a specific factual scenario so why would it have been better to leave all three  call three bad witnesses on the defense side ones that not only had one two or three convictions but they had multiple felony convictions and were right all gang members to the state it didn't make any sense to call these witnesses and then argue in closing argument believe my three witnesses with their three with their multiple convictions but don't believe the state witnesses as a criminal defense attorney it made sense as a trial strategy to rest on reasonable doubt force the state to prove their can't believe you know you can't believe the state witnesses but you can believe the defense witnesses and the defense witnesses there were more of them there was plummer there was being them and there was michael was all of them had multiple convictions not only that they would have been i they did as well and preussag to try to impeach them and didn't teach them a review of the record shows that he very vigorously attacked them on cross examination and as a criminal defense attorney that was a prudent trial strategy the trial strategy that's being proposed now and and a little call hindsight simply doesn't make sense in the real world in the real trial a reasonable defense was reasonable doubt to cross examine the witnesses which he did not only did he cross examine them vigorously but marshal one of the witnesses was completely nullified on the state's side and baker the one that actually said that will bell taylor passed the gun to his brother was also cross examined and questioned were guarding his statements to the police now had he called these three witnesses on the defense side they very easily would have been impeached multiple times through pietschmann by omission they would have been impeached because they had an opportunity to talk to the police immediately following the following the event they knew that their friend and fellow gang member had been arrested and they said nothing not one word not plumer not being numb and not woods not one of them not only that attorney retained shortly after the arrests joyce parker testifies that she retained both of the brothers right afterwards and that and he testified that there was no complaint that there might be some type of conflict now these the witnesses that now come forth and say they went to the attorney's office and said some things didn't even come forward that the a to the defendant was arrested in august of one nine hundred ninety six these witnesses didn't come forward until nine hundred ninety seven and in the in the reply brief that says that it's undisputed that they came forward in february of one thousand nine hundred seven the state does dispute that none of them testified to that so it's kind of an unknown nebulous very unclear date when they actually came to talk to attorney to tell them this alleged information for months have gone by at least six months if we were to believe the balance at least six months so it didn't make sense that he would call these witnesses at a trial knowing that they had multiple convictions if they said something inconsistent to the police that they would open themselves up to impeachment by omission and any state's attorney would know how to effectively impeach them and then use that against the defense in a closing argument it was prudent trial strategy to ruston reasonable doubt now the defense comes back and argues just because if there was a conflict of interest if there was an actual conflict they're asking this court to reverse the people's position is that's not enough it's effect and that's completely where the argument falls apart attorney present testified and it was a credibility determination and deference should go to the trial court for making a credibility determination now in the trial court's findings the trial court didn't specifically articulate every single one of the witnesses that testified but the trial court did say that he reviewed all the evidence they he listened to all the testimony and that he didn't and that he found that the defendant hasn't proven as of stance deprivation of his right in saying that he implicitly made a credibility finding the defendant had an opportunity to call his witnesses to try to show actual conflict the state had the opportunity to rebut that that certainly not against the manifest weight of the evidence as it was presented first michael was didn't even touch the five so we really only have plumer and being on and we have joyce parker the conflict occurs between joyce parker statement the attorney told me if she if he called certain witnesses that would implicate my son lol but not will allow an attorney present statement he testified she never said that he testified that there the decision not to call them wasn't because of what they said to him he discounted that the decision was because it made sense as a trial technique and this is a trial defense attorney that has had much experience in the criminal later there's no conflict even six months later there is a potential conflict maybe six months plus later when these witness witnesses came to the office and said we were there we saw there but we didn't see him hand a gun at that point the people position as it was a potential conflict the triggering event is whether this attorney was going to call these witnesses and he didn't call them not because of a conflict he didn't call them because it didn't make sense to call them in this case as he testified he believed in the strength of the case because the state had one witness that flipped and had another witness that as was mentioned was also a gang member and could be impeached and wasn't peached on cross examination so the trigger event was what the attorney believed at that time now assuming there even was an actual conflict the defense still has to show that there was an adverse effect and then there's this my eyes the seventh district recently defined  fact as a but for reasonable likelihood test but for an actual conflict there has to exist a reasonable likelihood that this particular defense attorney would have made a different trial strategy  and it's an objective factor not based on any defense attorney but this specific one well we know that this specific defense attorney would have done the same exact thing even if he wasn't representing anyone else because it made sense in the context of this case and this is a very fact specific case that that you have before you the but for analysis is what the defense cannot overcome there is no reasonable likelihood that an alternative strategy such as calling the other witnesses get go that well was the shooter told him he was the shooter ok so he had that information and accountability theory is more of a legal theory that the jury might not understand so attorney was talking to the to the strategic theor we needed a bench trial so that the judge could hear the evidence and realize that the state's case was not strong lol had no chance with a bench trial his best chance was with a jury trial so triers of fact and now even if he is mid that there was a conflict of interest at that point the defense still has to show at the evidence you're hearing that there was this adverse effect which they certainly can't this is ponce attorney had a client not only that he gave an inconsistent statement to the police the defendant told the police that he was two doors down so he doesn't even place himself at the scene then he tells his own attorney i was actually there and i had a gun and i was breaking windows so we have a defense attorney that's faced with a client who has the time who's at the scene hey now his friends come much later at least six months later and say by the way he wasn't actually there the conflict at that point was a potential conflict because he never intended on calling these witnesses for all the reasons that we discussed because they would have been impeached so he can't the defendant cannot show that there was an adverse effect that there's any reasonable likelihood that this defense attorney would have chosen any other strategy other than the one that he did which was reasonable doubt in this case and that is completely consistent with both this court's findings and also the federal courts findings and  is mines it's consistent with that kind of analysis since we're not in a per se world and we're in the second part it's both it's not either or it's actual conflict and in adverse effect and under this particular set of circumstances it's difficult if not impossible it's impossible to even show that a criminal defense attorney given the set of circumstances he had would have chosen to call three three witnesses who will gang members to the state who had multiple criminal backgrounds who get inconsistent statements to the police and who would be thoroughly impeached he couldn't in good conscience even get up on a closing argument and make any type of argument and because he brought this to the bench to a bench trial and  was arguing to a judge he certainly couldn't argue believe my witnesses but don't believe the state's the adverse effect wrong is the most difficult problem for the to find it to overcome because of his own confession to his attorney and that's where the whole argument falls apart and for these reasons in the ones that we discuss in our brief the people request that you will from the judgments of the trial court below and  conflict of interest had arisen he was no longer in the position to be able to adequately assess whether or not to call these witnesses because he was now under operating under an actual conflict of interest and in any decision he made was colored by conflict of interest that mr percent had testified i didn't mention any of this any of the any of the six defense witnesses and it is also important to note that a great amount of time had passed since the hearing had had