water the new d n a evidence suggests that andre davis is innocent and it points the finger directly at maurice tucker and one other unknown male as the perpetrators are newly discovered d n a evidence certainly entitles andre davis to trial and that is what we are requesting our newly discovered d n a evidence makes a point in this case first it shows that the semen stains used against andre davis original trials did not belong to him and second and more importantly it shows that the semen found at the crime scene was not was semen it was semen that was an artifact of the crime and in this case the crime it was the stakes theory at the trial that the semen on the bed was related to the rape murder of her on a stickle that's where she was found it was argued that that's where the crime occurred in the state went to great lengths t trial by calling witnesses to establish that that semen was part of the crime and that andre davis could be connected to the semen before witnesses testified to the presence of quite a stain on the bag on which the victim was a creator and i'm great davis was a creator and that's a creator's made up twenty percent of the population so to sum it up it was a very important part of the state's case to connect gray davis to this betty to the scene and they did this by suggesting that the semen on the bed was related to the crime that andre davis was related to the semen and we now know thanks to the gift of d n a that the semen stains used against hated maurice talker but it found that he did not necessarily exculpate i'm great davis and suggested that perhaps andre did this for the been involved in the murder but perhaps not the completely changing the theory as to what happened at trial this was not the theory under which under davis was prosecuted prosecuted as a single perpetrator somebody committed the rape and murder  they could reach a different result and the answer that question has to be yes under the circumstances  yes the state relied on three pieces of evidence in convicting andre davis of this crime the serological evidence which we've already talked about which no longer exists after jose  away the d n a evidence and it is inconsistent with the d n a evidence donald throw was a suspect in this case he was the one who was found snooping around the house at the time that realises parents were looking for little brianna he was taken to the station house for questioning his hairs were were taken he was a suspect he knew he was a suspect and it's very possible that he gave th statement he gave a statement saying that henri davis confessed to him and it's very possible that he gave this statement in order to deflect attention away from himself i'm not suggesting the donald the rope committed this crime we  the fact matter is that done wrong is one witness and a jury is going to have to evaluate are we going to believe don't throw are we going to believe this scientific evidence and that's a jury question and this case put yourself in the position of a prosecutor going forward at a new trial with this that you would not be confident that you could get a jury verdict especially when one of the state's witnesses maurice tucker who as evidence of third party guilt so if there are going to be a new trial for the evidence is changed completely and again back to my point a prosecutor certainly would not be confident that you could get a guilty verdict with the stephens and head has been taken but he's not been questioned he's not been arrested and he's not been healthy accountable for this crime compelling and it is it's when you look at it and it's just perplexing to me as to why maurice tucker is not being looked at right now i want to make the point that not only is the state's case at a new trial going to be completely marginalized and weak in light of this newly discovered d n a evidence much of the evidence presented at the trial originally point of guilt over a from andre davis and i want to talk  there were hairs get removed negroid hairs that were removed from the victim at the time of the autopsy those did not compare to andre davis and then there was an eyewitness who testified that he saw somebody at about seven o'clock leaving suspiciously leaving the talk of house and he was shown a lineup and gray davis was in that lineup and he said he thought you'd be able to recognize who it was and he did not identify andre davis when he left the house comes from maurice tucker somebody we now know is complicit in this crime and again the jury would hear  that again i think the issue before this court is not whether andre davis is guilty or innocent that is a question for a new jury is i disagree i think that this court should not be looking at this case from an abuse of discretion standard of review i believe that this court should be looking at this case to no fault and the reason for that is that credibility determinations had to be made and so in that situation you are in just it as as good a position as judge matters to weigh the evidence and decide the critical question would this evidence have made a language that sometimes used in a different context of undercutting faith in the jury verdict is that spilled over into this case is the thought about well the jury you know that there probably would be a different that any state there might be language in the bendy stocks case which was a case that's very very similar to this case and match there with sarah logical evidence that was used against the defendants and there was a there was a cloud more evidence this for the same reasons that i stated here today that this this evidence is compelling this evidence is not only saying that gray davis is excluded it is evidence saying this is the alone to confess to the authorities detail confessions here that if there is no credibility determinations to be made and if the underlying facts are not disputed and the two courts you know one should be written to know and the supreme court said no those were the only circumstances that denson apply to so with that clear language and with the fact that the supreme court had sided paul the prairie fire here and no more recent rulings on that  stands as the precedent and it is an abuse of discretion standard despite this limited application and and despite the authority of paul the defense defended here has argued that due to a stipulation and this is the way i interpret the argument that was made due to the stipulation of the d n a evidence in the proceedings below this somehow that removed the trial judge's  see and hear them testify and even to judge you were correct but judge flannery did hear much more testimony than we will have here about what the witnesses the trial evidence itself counsel is being a little disingenuous and griefs to suggest that that is the only evidence that was that issue it wasn't an defense counsel in the proceedings follow on more than one occasion said i'm asking the court to take a comprehensive but quote undertake a comprehensive review of the evidence presented that at trial and that's an honest statement of what this motion actually even legally required of the trial court the court was not allowed to just so the testimony and opinion of the experts they upin that the bloodstain had to happen at the time of the rape or had happened contemporaneously with brianna leaving her cell for that to happen but the trial judge recognized also that he had to look at this again in light of the other evidence and the trial judge also recognized significantly that the jury returned a general verdict of guilty here the defendant was charged with five counts of murder the first four involved murder based on a different forcible felony but the fifth one was that the defendant suffocated brianna causing knowing that those acts would cause most likely  all the evidence today all are all that the arguments today and everything in the very has strictly addressed this d n a evidence but the suffocation and the evidence of that was significant and it's completely separate and not undermined by the d n a evidence at all so except that the jury ferries on which this general verdict of guilty was made and standing alone if evidence on that issue alone of the suffocation is sufficient defendant has not overcome one of the theories that was presented at get out of here but when he made this confession which did not involve any part of a sexual assault he specifically identify the room where the child was found he specifically identified hearing or recalled hearing knocks on the door which was corroborated by the testimony of brandon spragg was the child stepfather that he had been at the house knocking on the door because he heard music believe somebody was in there he  specifically stated to the row that he suffocated this person that he did it after hearing knocks and this person was starting to scream and try and attract attention to get some help so while there state is overstating the value of the the fact remains it is corroborated by other testimony that was put into evidence at trial and used and the fact remains that nowhere was this evidence contradicted the jury heard all this and the corroboration remains unassailable by the d n a evidence and it is completely apart from the sexual assault what ever you want you know whatever emphasis from you but on the a evidence of the sexual assault this evidence of the suffocation stands clear and it is sufficient to support the trial court's finding that he simply did not overcome the theories presented by the state and he did not overcome them to the point that a new trial would likely result different would likely have a different result defendant also admitted to an f b i agents that it was possible that he killed a three year old he made comments to several law enforcement officers and the one law enforcement officer indicated that he himself at the time of the interview was not aware of the age of the child and yet dr defendant said that he knew the child between two and seven knew it was a white child he knew that the crime involved a rape and yet all the law enforcement officers who testified said we did not tell him that it was a rape we did not tell him it was a white child we did not tell him the age of all  statement and i apologize if my recollection is incorrect i believe i thought the testimony from that officer which i believe the officer has since passed away was that he was simply there to arrest defendant i didn't recall that he had said but let's say that he said it was for a rape he still did not testify as to the age he didn't testify that it was a child there were other things that again the d n a evidence does not call and mysterious me into question  the defendant had scratches there's a lot that's been made about the fact that there was no blood and the issue of what was that the swabs and the washes of the pain itself came back clean but he had scratches on his side on his thigh and couldn't give a clear answer as to how he got them he said he got them wrestling then he said i want to alter russell and then he went back to i got there wrestling and i think he ended up by saying i don't know how i got that we'll go through some evidence that he was defendant lying on the ground under a shrub and this is when dollar originally came home and he approached him and said what are you doing and the guy said well i need to get into your house but you forgot to mention now that w as not mentioned until the trial i believe that is i believe this first throw shortly both the grass that was found on but it was the trial court's job to put all these together and to come up with an answer and find whether you know this court's responsibility again is fine but there was an abuse of discretion i don't know that we have suggested and that the defendant has addiction to the fact that is this was traumatize two different doctors testified that it was traumatized that the trauma could not have come from masturbation that it came from close and down repetitive contact with a very tight or small area so that's something else that gets thrown in there and mix you're right there wasn't blood found it was the same amount but there certainly was trauma to one doctor said it had to also the trauma would have resulted from at the time  what the jury was per se everything except the c n a and the fact that the guy who owns their real answer owns the house who has an alibi provided for him by someone else is the guy who semen is in the bag and then it's not oh oh no but that and there's no testimony about them having activity there that day intimate activity didn't have women in and out of the house or at least if they did we don't know that or any or activity with each other it came from somewhere and it's o asking about that in your mind because it seems to me that it really does change the focus if instead of saying probably results in a different verdict you say there's new evidence but it would be ingenuous for you to suggest that the case was really tried by the state just you know here's all the evidence jury think what you want they want it down to focus on the rape of i apologize or i would like to just press just a couple of other things first of all i was mentioned today that there was evidence of the window in a bathroom being broken that evidence was in the first trial it was not in use in the second and this issue is to look at the end of the d n a evidence in light of the evidence of the second trial that was not part of it there was also much mentioned about the fact that donald was trying to protect himself and that he was a suspect if you really want to protect himself once the family had gone through the home and not found the child and had left why in the world would he go out there and direct them all come back in to say he found the child if he was trying to protect himself it was he was trying to protect somebody who apparently were supposedly could have been a close friend of theirs that makes no sense to me at all here just if that's the case he just got away with it because the family searched the house they were test house we didn't find the child it makes no sense he came out they testified he was so upset he dropped his glass that us holding it shattered everywhere he was visibly upset and he led the police in to find the child about six o'clock until eight o'clock the information come from this fracs calderon had a conversation with this practice at the time that they were all searching for the child again and this is an issue for the jury to sort out  you know if i said one witness and he had a motive to lie with regards to the statements that were made to law enforcement officers mr davis is statements to officer porter that he did not rape a little white girl does not necessarily show guilty knowledge there is evidence in the record that before davis made the statement you've been told what he was being arrested for and that was  a little girl and then also reporter asked him how old is this little girl and he says ages five to seven and it and to me that's evidence of actual innocence if he knew that they were talking about reali all he would have said ages two or three  with regards to the standard of review again i think it is it's my position that you do not have to court a court any deference at all to judge leonard's opinion in this case and his decision in this case you are in did not have to make any credibility determinations what he did was weigh the evidence and that's the question before you what injury find this newly discovered d n a evidence have made a difference by hundreds of the evidence that's the but i think reasonably probable likely those mean the same thing in this context and again i don't have to show that the jury one hundred percent definitively would come back and say he's going to be