me please the court my name is short term sera pointed counsel for alonzo price i reserved with the course permission two minutes for about oh i'm going to ask you this year if you lose on the issue of counsel moved to suppress based on essentially the fact that it was not discovered by officers and not the scabbard contemporaneously with the crime scene investigation and so that's looking at the cases law the case as to what was put in that motion to suppress and what was in that motion to suppress was so we an argument about the failure to find that cigarette butt during the crime  reply brief and as this court has said the stricken inquiry isn't a mere sufficiency of the evidence inquiry where we just isolate and then look at the remainder of the evidence we look at the entire case including the weaknesses this is in cases like break ired and other cases by this court that we've cited so the fact that evidence may be sufficient doesn't answer the question no i'm sorry  on the last point he was not absent on the twenty nine if he was about an hour late to work but again you're so you're focusing on suppression you're saying if the evidence is suppressed then he goes  trial with this other evidence and if the strickland increase and we're talking about suppression now if the strickland inquiry is going to eliminate that evidence of focus on the remainder there would be sufficient evidence to convict but we still have the claim about deficient performance at trial which is the say assuming the evidence was properly admitted what happened then failure of properly clause in this evidence the question of whether it actually was logged in the question of what was logged in doesn't doesn't that attack on credibility reflect on the other aspects of the case so th integrity of the investigation in a criminal case in which those the tact of so as to detect this were were central they were that they were a core of the prosecution's case the integrity of this entire investigation we look back at this there's a black hole when in terms of the chain of of custody no contemporaneous report of detective skoal has a thirty page tite investigation report it accounts it documents all the events from the haber crime through president june twenty ninth through early july even up through oct not a word about the cigarette that isn't haven't we moved beyond that now to the issue of the credibility of the evidence that was presented and when there is a important factor that has a strong credibility attack that  spread to the rest of the evidence and finding beyond a reasonable doubt because we're talking to those rope we're talking about the integrity of the investigation and if and when we talk about this other evidence let's be clear the cigarette butt d n a evidence a evidence used by the state to put mr price not just at the crime scene but up on the roof which was the burglars point of entry a burglar who reportedly smelled like he had just been smoking we look at the sequence of the trial  see the significance of the cigarette but who's the first lady witness who's not a victim it's harming peers have to stay close with the d n a expert look at the state's closing this was central evidence look how the trial judge  characterize a motion for a new trial because of insufficient evidence on the here or crime she seizes on the cigarette but and you know not only the integrity of us a geisha we have to remember here these are two crimes of the state linked together on a unitary theory that there must be one and only one perpetrator well let's not ignore that that's their argument but they have to take the bitter with the sweet so let's look at cd hammer she's known mr price most of her life she is asked because she the perpetrator said hirst perpetrator spoke to estimates five eighty five nine a buck seventy five this is a large man sixty three to twenty five she says and she owns the perp her perpetrator left the t v on so there's some light before she ultimately is is blindfolded with the pill case unlike presence perpetrator who shut it off she said she appeared to see a red shirt there's no recovery of any of any red shirt and i had to correct something by the way in the state's brief the state's grief says that the page seven quote him or had mention price is a possible suspect in her kidnapping prior to the pres kidnapping that's false the two sites don't support that at all that was two sites or t didn't counsel do something here and this gets to the nub of the i think the central flaw in the sea court's decision did counsel ineffective assistance claims are not limited to scenarios where counsel is asleep  trial or stands mute did counsel ask questions about the cigarette but yes is that go into this issue of attacking the chain of custody for a client maintain he's innocent no so if we look at what the c court did the trial court quoted from transcript where there was discussion about the but he says detective albrecht was question by the way in that quotes the trial judge was there's no question about the cigarette but itself all over gases who went on the roof of coughing go on the roof did you go on the roof did you see anything skoal as i was saying before detective skoal in his thirty peter report that goes through this into october never mentions a cigarette but once the grand jury convenes on october twenty fourth we're now four months after the crime and after the recovery of the cigarette by the granger reconvenes detective older testifies and if this isn't a federal record a grand jury transcript detective olbrich testifies and makes a big deal about the cigarette by being recovered two days later october twenty sixth two thousand detective school returns to the present partment starts photographing that photo of you having the record with the paint cap with it and then prepares a supplementary investigation report it's dated october twenty sixth two thousand the day he went photo and that's the purported chain of custody for the cigarette but that's where he says he never appeared thirty page report he says i went to present put it in the smith in a in a small bro ca i want to clarify one element of judge mckee you had asked whether or not in the first counsel had argued about the chain of custody for the cigarette butt and the likelihood of switching the evidence and that wasn't fact argued on  suppress it may not have been brief but it was raised in argument after mr patrick who's the attorney spoke to his counsel excuse me took his client that is she was civically raised on the first motion and it's in the trial transcript  or once the back was raised once you but with the middle ages do the basement have the i believe it was raised with respect to suppression of this was on the motion to suppress the oral argument on the motion i don't disagree your honor that it should be law of the case and i it certainly does i would front i would say that it is the law of the case because it's the same parties the same judge the same court and the only reason why it did not carry it there was a second trial was because it issues with a juror so i would argue that it is not the case and you're correct on your honor it wasn't briefed the focus of the brief was more on the issues related specifically to the certificate of appeal ability  concern from a lot of people and one of the key things about this piece of evidence and this does go to some of the issues of credibility that judge roth had raised this is not evidence that was collected by the police i think they have said that repeatedly they a into evidence there were so there are several issues related to that cigarette but your honor the issue that was presented initially there been issues with respect to whether it had been planted by actually the the woman who found it was one issue that was raised to trial there was issues as to whether or not the police went back and planted it there were questions as to whether was actually there when it first was when they found the police first did the crime scene investigation in the early hours of the morning there were a lot of questions about that isn't the biggest question the serious question was the but it was picked up on the roof the but it eventually was entered into evidence or was was there a switch now that goes for police misconduct but at the same time i think there is a valid argument on the chain of custody you know why why wasn't the cigarette butt mentioned in the carefully detailed list of what was where was it why when you counsel i understand your concerns john and i will address them one of the and one of the points i wanted to make with respect to the cigarette butt and why it would not have been on any of the details logs as to what was found at the site which because the detail lives were lost by the police done at the time of the crime scene investigation and were not supplemented with things found by other people they were literally everything that was found at the date and time put together by the crime scene investigator so this piece of evidence was found twelve eighteen hours later twelve sixteen hours later excuse me it was found by the friend of the victim it was she actually went out onto the roof and picked it up and took it off of the location yes with a piece of tissue so she did not get fingerprints on it i'm not go i don't want to suggest that she did it that way however she went and moved it so that it could not have been found subsequently by someone and then brought it back into the house so that piece of evidence is not going to necessarily be treated the same way as a piece of evidence i think that that's rather relevant evidence i don't disagree arguing that that is the financially beyond a reasonable doubt when the cigarette butt suddenly flows months later and you wonder is this really what was found on the roof i don't disagree or arm but under new jersey law that kind of information that kind of question about the chain of custody does not go to the admissibility of the evidence in those and i'm not talking just a bill yes this ability i'm talking about credibility it undermines that particular piece of evidence i don't know that i would agree that and undermines every piece of evidence that was collected by the police officers there were three different police officer who fired it but at the same time the jury consideration of the evidence before us is well i mean look at this this this is really it's possible yes i agree that the saliva that was found in the pillow case did not match price and that is clear and that as detective aldrich testified his his initial theory had been that the  had used his teeth to rip with the shreds of the pillow cases to tie up the victims both of the victims and his as he testified at trial that theory was undermined by the fact that there was not the saliva was not found matching they tried to undermine the voice id by taught by cross examining her and they cross examined all the police officers as to when she first told them who she thought the assailant was and every single one of them said she told us the day we were there doing the crime scene investigation the day  incident she told us that she recognized the voice of lonnie price and she knew the voice because he used to call into the pharmacy where she worked and she spoke to him on the telephone repeatedly so the voice id they did try to undermine the voice i d with a voice id is still a very strong and powerful piece of evidence on that and it was not shaken at all by any cross examination of mrs press there and they were to say that the fact that you never talk to someone in person you only heard them on the telephone your telephone voice isn't necessarily the same voice agreed but i think there was also testimony that she did speak to him when he came into the pharmacy so there was to talk two different ways that she had spoken to him so she was aware of his voice from both avenues and she survived cross examination and that they did not undermine it in any way i think it's still very strong i think yes the telephone could be a different situation but i also think that she testified that he came into the pharmacy as well and that she spoke to him there so i think that the voice identification is very strong evidence i think with respect to the cigarette butt and i'm kind of running out of time quickly here so i did want to get quickly to my argument on this and that is that as you pointed out earlier there is a double death doubly deferential standard if you will under the  a as well as strickland which is the prevailing argument and i think that defendant has not proven what he needs to prove in order to prevail on haiti's relief here and that is he has to prove that the decision by the most i g that the highest state court to address the issue on the merits which was the p c r court was clearly contrary to strickland that it was an unreasonable application of strickland or was based on an unreasonable determination of the facts and i think the fact that this is d n a evidence is making  unreasonable determination of us no i think the court did didn't consider those arguments and in fact listen to the p c r attorney's full argument about switching the evidence and that and during that argument she actually admitted that there was no evidence supporting her theory she said is there a problem with that there's no evidence no she didn't think there's a problem in the court said really you don't think there's a problem there's no evidence supporting your theory there wasn't any evidence the evidence is an absence of it you have detective sculls testimony about the chain of custody and he did testify that he took the material he took it back he had it in a brown envelope he wrapped it with evidence tape the initial the evidence tape and he had detective sergeant brennan right on there where he found the details about that particular piece of evidence the police reports the police reports are evidence they were not admitted in state court they can be used for cross examination they can be used to refresh recollection but they aren't admitted as evidence because they're hearsay so those are not the evidence that was before the court what is before the court was the testimony of detective skull that was not that was not was challenged extensively but i would not say it was undermined and then you have the p c r attorney who says there was no evidence i have no evidence assistance of counsel and the failure to challenge the chain of custody the failure to you know i mean i cried a lot of cases not criminal cases but but cases that required proof of a train of custody and it's vital to a case where you have important evidence to be able to show that that particular bit of evidence hasn't just been picked up off the table somewhere but is in fact the very thing who's found at the scene and we know everyone who had control of it and tell is brought into the courtroom and we don't have that here i think that's the big lacking that's a lock that the p c r court really didn't go into and i think the failure to just pushes that aside i think you're i think that there was testimony i think that there are very very different ways of appraisal of demonstrating a chain of custody under the circumstances given this particular piece of evidence it was the testimony of detective skull there is no l it's admitted there are no photographs diagrams or anything of the sort that is all admitted i'm not saying it's the best police practices in the world but i am saying that there is a way to prove chain of custody and they had detected scull on the stand and detectives call set forth the chain of custody that he did he also had you also had current peers on the stand who talked about her discovery of the evidence is there a hole for the twelve hours between when the c s i people were there and when carmine pierce was there yes and they can't account for that and there's nothing you can do about it they have various theories but it is still a twelve hour period there are a hole in the four months between the time that the cigarette butt was picked up and that there's a record of the cigarette butt being evidence the cigarette  later now was not four months later the incident occurred on june twenty ninth is five days seven days later so that is the cigarette butt was in evidence at that time and was transferred there's issues about the plastic bag that mary  mary helen pereira says he put the cigarette butt into but carmen pierce as well as detective scott said i put it into a brown paper brown envelope and there's testimony about how you process evidence when you're dealing with biologics that you put into paper on bill of the plastic bag on the point about no evidence of tampering if you're pretty darn hard to imagine a scenario with direct evidence of tampering at measure sooner with the state actually goes to trial trying to put on that evidence in the face of that it's not needed the state is a proponent of  burden to authenticate the evidence it's putting on by analogy you could judge mickey you authored an opinion we said grant the locket a few years ago ineffective assistance because counsel doesn't impeach a the in this case not just about this this whole there's a regularities of what happened which i won't get into but earlier that afternoon where these evidence shows the officers targeted mr price with what the p c r court call certain sounded like the voice might be reluctant to say it couldn't someone else when it's relying on the on the sound the of voice and finally again there was a chain of custody argument for counsel to make to get his d n a off the roof c