difficult this morning to determine how to structure the argument because frankly this case i think almost reads like an evidence exam there's virtually every issue you could conceive of in a criminal appeal there's an indictment relates to the correctness of the trial court's ruling i'm not a motion in limine the and the reason for that is in this case there weren't any motions in limine the filed by the defense counsel but that underlies part of our claim that defense counsel did not afford mr howe just like the assistance because he not only affirmatively elicited prior convictions of the defendant that would not have been admissible at all under montgomery but he failed to do prior to trial to exclude other convictions that may have been in the civil but that potentially could have been excluded on the ground that they were more prejudicial than probative so it wasn't part of his trial strategy to show just how far the defendant had come in terms of turning his life around and didn't use those prior convictions to that and to further the trial strategy well i think his strategy may have been to say that mr hatch used to be a bad person and now he isn't i don't believe that's a reasonable strategy to me it's the equivalent if you have a client in a domestic battery case she certainly wouldn't say to your client when did you stop beating your wife you don't set up a defendant's conviction just for impeachment but it was in the book conviction and the supreme court recognized the highly prejudicial effect even when you're talking about a judge of being able to separate the curator of the defendant from the prior acts so to the extent it was his strategy you know it was not a reasonable strategy this case came down to three things for the jury to decide the jury had to decide if mr howard struck the officers had to decide even if you struck the officers if you did it knowingly and whether he caused probably harm this was essentially a credibility contest between the civilian witnesses who testified for the defense to whether there was no one conduct here if you recall the jury sent out a note asking for a definition of knowing there are also some questions about the fact that apparently a videotape had been taken of this incident at least some parts of it but it had disappeared before trial so this came down to who did the jury believe didn't believe the state witnesses or didn't believe the defendant and to the extent that these prior bad acts impacted his credibility it certainly had a devastating that occurred in this case which have also a substantial impact on the fairness of trial and i believe one of the most significant errors in terms of the evidence relates to an alleged prior inconsistent statement from the police officers because he's not normally like that there were three problems with how this evidence was handled first of all the defense was not allowed to introduce evidence through a third witness you know just to prove that this statement was never even made secondly the jury was not properly instructed on the statement the jury was not told which community comments directed they be told they were not told it is for them to decide whether in fact the statement was made never certainly an issue in this case thirdly the prosecutor used this statement influencing argument as substantive evidence of mr hodges guilt there were several paragraphs during his closing argument where he went on and on and on about what ricky and apparently here are supposedly set at the police station and how she was they are she saw it she knew would happen she saw her husband strike a police officer and use that to during the course we are going to continue to finally defense counsel objected but the trial judge overruled that objection so the jury i don't think really understood that this was in that to be used for the defense witnesses and this is a case in the very very similar to the name or face again in the new the case there were two police witnesses who testified that two of them who said they were drugs from the defendant in a particular housing project they had drugs stay said we got those drugs from the defendant the defendant said i was there but i didn't sell the drugs they must have mixed me up with someone else this is the same kind of incident we have here the police said way there wasn't one of course this leads to the indentation there were no photos have stuck in her to the officers with the exception of one photo where officer garcia had a red mark on her right hand that w grabbing the keys that was his strategy through the state's case so at this closing the state's case thing actually brought things both of the charge against him by striking the part about the keys and then the correct certainly not at this stage with respect to whether the defense was entirely to put on evidence separate evidence on whether the statement was made the state doesn't dispute that it was certainly wasn't of what a party is right is with respect to evidence when they simply deny the statement was made there's a lot of case law for saying when a prior to this is since day one when evidence of a prior inconsistent statement is introduced the party should have the opportunity to explain the making the explain the circumstances under which it was made i don't know it's just so self evident that if a party denies making it certainly this is relevant evidence and you have a right to put out relevant evidence when you can one can argue certainly that  police officers those are coming up with well i don't i think the problem is that if you're treating it as an admission it really is not relevant for that purpose because it didn't relate to the incident question and related to subsequent events but it's a you know that he didn't dispute that he was adrenalized so i don't know there really has anything to that out there and then to say he reacted badly to the threat from the officer after the incident i the amendment really didn't alter the nature of the elements of the charge against the defendant did it now we still and battery charge right and so if it didn't alter the essential elements of the charge that the state had to prove then there really was just a formal change correct and not something substantive i don't think were or were not disputing that it could be seen as a form of defect the issue is that even if it's simply a formal defect if it prejudice is surprises the defendant that dadt is the error because again this is a kind of case where there's there personally now is each separate act so for example i think it's the coleman case where it was a murder or the means in which the murder was committed with change but it's still burning there's only one count of murder i think the prejudice here is because of the fact that they're seeking separate convictions based on different acts so he was defending against this particular act has been committed to kings but said i didn't touch your hand and i didn't strike or i just grabbed the keys from our hand says i didn't strike right off how does he have prejudiced him because the jury is not being allowed to she didn't hear she had some red mark on her right hand so the jury is now being allowed just to find he's guilty with relation to officer garcia defended the president's being that he could be found guilty of committing the crime every battery more than one regard in fact in this case come to allege just that he the defendant struck officer garcia about the body ways that an offense is being charged this one thing that if you don't know until afterwards then doesn't then prejudice the defense saying it's a state solution to a lesser extent the defendant was on notice that he was being charged with aggravated battery to a peace officer and that the manner in which he was charged wasn't the cause bodily harm the exact methodology of how  extraordinary situation based on the circumstances of the situation i think it was important for counsel to try to show that this was uncharacteristic behavior for this man and there in the strategy although not successful defense that's correct recollection is the hauler that is consistent with my partner argument that this was a matter of trial strategy it's unclear why the strategy was i don't believe at that point those convictions were strategy it wasn't was trial strategy certainly that's exactly what this alleged statement went to when the jury was told that his wife had said this and that was true and that certainly prejudicial especially in light of the way the jury was instructed with respect state the defense theory was that mr harris was a good man being prosecuted because of his bad past that was not the defense theory there was no evidence presented that these particular officers had some kind of vendetta against the defendant because of this past is stretching as it was was to say he used to be a bad person but now he isn't and then isn't a reasonable strategy and to even go so far as to say not only does he have these series of felonies so many that he can't remember them but he's actually been sentenced to prison on several occasions what to say to you but paint your client as a dangerous person who's also a violent person who judges have seen fit to put in prison that that simply is not a reasonable strategy what this case comes down to is it did kill her and should receive a fair trial this case and in light of the all the errors that occurred in this case i don't think you can come to the conclusion that