mode on its own motion once it learned of the conflict mr faults said that it was obtained prior to trial but he also seemed to think that some of the state's attorneys were aware of it but it the state's attorney into marco's case and the c accidentally forgot to do or if he just trying to curse tracks after the fact but it definitely was not filed prior to trial really able to find any cases that talked about a requirement that the yes i believe in people versus thomas they touched on the fact that a court needs to have admonished the defendant because the court is a neutral party and they need to admonish the defendant in open court because this is such an important right to waive it needs to be done on the record in open court make sure the defendant understands the real consequences with waiving conflict free counsel and our it was whoever it was no one ever identified them there is a question as some police officers had said that it they might have thought it resembled someone named alfonso davis but the victims police in best started questioning her on this and so her statements were white provided the foundation to police were what provided the foundation for the entire  provided the link that they were missing there wasn't much at all that would have been acted are clients of the crime so  market her interviews that she gave police it does hurt him but that is why defense counsel should have had a thorough cross examination of her and this court has to mark but as we know the new story she told at trial but then they got into all the other interviews the phone calls this was all really damaging to demar terms that day and she might have stuck with her statements that she told police originally so this is why a waiver should have been a ten prior to trial in the first quarter of the interview groups the police guilty to a reduced misdemeanor charge her jail time was stayed and she received probation chills and was charged as we've discussed as the getaway driver in this case based on these facts at least looks like amber benefited from her testimony or her cooperation with police and this is one of this implication is one of the very things that the per se rule is designed to protect it's the state has argued that because amber was a hostile witness she was not really a defense witness or a prosecution witness for purposes of the per se rule but this court in people versus murphy in the supreme court in people versus thomas consider similar situation where a witness later on the stand changed their story or said they did not make those statements to police and in each of those cases of her say conflict was still found and in this case many of the factors that were in play in the consideration the court in people versus thomas in concert in deciding that it was a state's witness word issue amber change your story of trial and mark she also was always listed as a state's witness and the state chose to call her this all makes her a state's witness it is possible to have waived a per se conflict of interest and here  discussed there was a signed waiver but a signed waiver is not enough the waiver here wasn't filed prior to trial it's clear that the court was unaware of the conflict in any respect until well after the trial and the waiver in this waiver in this case or should have been admonished it should have been done in open court they should have explained that counsel had loyalties to bill to marco and amber and may find himself needing to choose between those defendant strenuously argues that a first say conflict existed and thus defendant needs a new trial we disagree for two very important reasons first ever grey's was not a prosecution witness within the meaning of the per se conflict rule second if your owners are not persuaded by argument there was a waiver in this case first amber graves was not a prosecution witness within the meaning of the will the policy of the person a conflict role is to ensure that defense counsel she said was wholly beneficial to the defendant ever grace s to be believed in her trial testimony essentially took the defendant out of this time altogether she said we went to the casino we went to get gas we went back to my house and we were at my house all night everything she said was exactly what the defendant would want her to say it took him out of this time altogether took from calling her even as a hostile witness that enabled the state to be able to get in her prior reported statements of that she police interview which she gave one to you she was actually brought into custody on unrelated charges and they asked her then about this incident with the defendant at that time which was for which was excuse me reported first i'd like to address that israel fighting back from the group i don't think the place that they recorded her interview was actually played yes oh it so first i'd like to discuss the jail recorded conversations between the defendant amber graves those recorded interviews have come in anywhere the recorded conversations they apologize defendant where he's trying to intimidate her from testifying yes he was and things that he said were certainly far from without or they had a side let's focus on the interview ok and in terms of the interview the things that she said they would have come in any way that interview and she was critical party to this whole transaction she went to the police station she talked with police and the things that she said to implicate the defendant and this crime it's true and h not a prosecution witness within the meaning of the purse they conflict broke her testimony actually file benefited the defendant the policy of this person a complex role is to ensure that defense counsel strenuously cross examines a witness before him there was no about the fact that she picked the three men in the play store parking lot and the remarks of davis that she testified to which strikes me as the strongest bit of evidence linking these folks in the timely fashion together as the three armed robbers of the store yet now prior to that moment that this morning wasn't before the jury conversation of her car your honor while i can see how defense counsel speculated that that way of her being a very strong link linking the defendants to this crime there was significant other evidence against defendant in this case rules on per se conflict don't apply because after all she was really a defense witness even though called by the state because the first customer wanted to break that argument you have to demonstrate defendant's brother was also involved in this case and his arrest is really what prompted the police inquiry into the defense and offended and when the police came to his home you know searching for more evidence related to its brother they notice that mr  very he was on edge he was asking a lot of weird questions they did notice that the clothes that were around his apartment were similar to the clothes seen in the police or the surveillance video that offend it was earlier in the day at a casino with amber graves wh she was also caught on surveillance video in the casino wearing similar clothes and i believe a live strong bracelet the yellow band that people used to wear that was also another link between them from the casino to the piece of candy store that i've seen the things that amber frey said during her recorded interview with police officers that was that white cloth police to demarco pool in the first place certainly the things that she said and that interview were damaging to him but the things that she said  girl when mr foldes would have been cross examining her were not detrimental to marco polo whatsoever in fact if she was to be believed he wasn't there at all however if your honour's aren't persuaded by the argument that she was not a prosecution witness i would like to talk about the waiver in this case there was a waiver on file it's on the record in this case as defense counsel notes this waiver is not dated however there is evidence throughout the record which suggests that this waiver was obtained pretrial wors do it but the court has to hear it then as a judge who used to do this i turned the defense attorneys say he understand what a jury trial is and what you're going to establish it's a knowing and intentional waiver of a known right i've never seen way that this august twentieth hearing seems to proceed at least based on the record itself none of us were there watching this unfold so we can't say with one hundred percent certainty damn fault said your honor i have a waiver i got a waiver too video of what was happening on august twentieth but presumably then mr mom has or has a payroll here is the waiver and then they don't really talk about it anymore at that hearing this waiver issue is extremely important and i can't stand here today and tell you when  court and the situation rather more dramatic actually involving the court which we don't have in this case said this it cannot be said judging by this record that the defendant was adequately informed th conflict of interest so far is is when the tourney was concerned and that he understood how conflict could affect some time suddenly a client's representation the difficulty appropriately advise you make use of his rights almost directs that i'm conducting himself in this fashion this strikes me as some serious ethical serious ethical concerns that i think here d c should be addressing your honor i'm glad that you make that point because that is a perfect segue into something else i want to discuss the fact that this claim is much better raised on a petition for post conviction for that we can ask this question i don't know when the waiver was signed the fence counsel doesn't know when the waiver thing and we don't know what mr folds told the defendant but even if we honor i think that in order to understand what happened in this case in order to understand wh what they were thinking this should go on post conviction and we should ask those questions if the defendant can sign an affidavit that says i didn't know i didn't know what i was doing when i signed this waiver or i sign this waiver post trial then we can delve into these questions that we quite frankly don't have the answers to right now and i understand your honour's concerns that you know based on the cold record this just it just doesn't quite seem right and i agree with that however at this stage i don't think that it's reversible error because we don't have enough information we need additional evidence from the defendant from defense counsel as to why transpired off the record because we cannot stand here today and say that defendant sign this before trial they've actually talked about it before with  the assistant state's attorney on that basis we just don't know for those reasons we think this claim is much better raised on a petition for post conviction at which time we can further explore that argument because if indeed the defendant didn't know what he was signing if you signed it post trial and he has an excellent claim in this case perhaps he is entitled to a new trial but if we reverse this decision and send him back for a new trial maybe he did sign the waiver after trial and then we're reversing his conviction on something that was ok in the first place honor he was representing them both at the same time however we have this waiver which we need further evidence about but we still stand by argument that emigres was not a prosecution witness defense counsel did argue and there are five brief  don't necessarily have authority to support that contention and that's true this hasn't been addressed in the spot before i think that it's it's important and dr distinction between a prosecution witness and any witness called by the state anyway that's called by the state is very broad prosecution witness suggests the witness that is eating the prosecution which we don't have here oh i have very few honors that aren't persuaded by that there was a waiver there is sufficient evidence on the record that that if she went this hostile witness language here generally as your honour's know when you have a hostile witness as a prosecutor you call witnesses start asking them questions maybe they're responding i don't know i don't remember they're just not cooperated with you at all at which point you can ask the court before she even got on the stand had some sort of understanding that she wasn't going to cooperate with the state because why else would they allow her to be treated as a hostile witness before she testified at all i think folks so he didn't have any of her to her being treated as  said a single word so perhaps using the terminology as they did in the trial court hostile witness wasn't necessarily the most appropriate thing but as i've just told your honour's there's not a lot of precedent on this matter and so far as a prosecution witness  witness testifying for the prosecution and if your honor it's still believes she was indeed a prosecution witness she thinks that she sat or the things that happened and you know did damage the defendant they heard him out as try on the site the fact that her testimony essentially took the pendant out of the crime altogether to say that so reflects some guidance on this issue of conflict issues come up a lot in our office it would be helpful to have some sort of understanding if prosecution witness means any witness called by the state or not sometimes prosecutors have to call a witness that they know is not going to be helpful to them in their case and the prosecutor's duty to ensure that justice is done and sometimes that if it was following someone who might not be that helpful to your case we think that's what happened here and for those reasons we believe that amber grace was not a prosecution witness within the meaning of the rule your honor furthermore defendant did wait with rights to a conflict free counsel and although there are issues about that waiver those issues are better resolved on a petition for posting fiction really therefore we ask that your honour's affirm defendants conviction and allow him the opportunity to pursue this issue on a petition for post conviction thank you thank you counsel w this steve has mentioned that there's not a lot about whether a witness really benefits the state or the defense this people versus murphy and people versus thomas all considered similar situations and still found the witness to be a prosecution witness and that argument is sort of the sides of the point because the waiver needs to be done before trial you can't know what the testimony is going to be unless you  stipulation i guess who so you don't technically know what that person is going to be testifying to until that happens you have to waive the representing the conflict before that happens so that would be our answer to why there won't be a lot on that also to the argument that this had better be better brought on post conviction we respectfully disagree because what is affirmatively shown on this record is that nothing was done prior to trial while we might not know what was said to marco when he allegedly signed this waiver prior to trial that's pretty much that's the point because there need to do something done in the trial it's on the record and you know that they have that defendant has spent as mohnish and understands his rights conflict free counsel and what he's giving up waiving it and everything decisions argued that everything amber sad was beneficial to the marcos case except this ignores the fact that the state then got and all the prior interviews and the phone calls and everything that was that offense because it would have called into question everything that she sat not just what she said it trial but even what she told police as well there was no his cross examination into her just didn't touch on anything like her motivation