his translation english translation of a spanish conversation he had that i spoke to the defendant that's not in the record of the of the spanish ever station nor the english translation that he should have gotten here and yet there the court found that skate well those were yes your honor then they were both caught yes and that was very important evidence and that's why this was it causes failure in other respects made this presidential because but at the end of the day didn't the judge actually pick out one witness that he or she really she just said she decided it was more credible and that was the woman who lived at the house where he was difference does it make where is the prejudice well it's presidential for three reasons because as as just race pointed out they cast doubt on his ability to perceive on it drug the testimony froggies this is subject to a trial court's finding isn't it important enough to put in the record or the trapper may know fighting about the lab report because she didn't have the benefit of if she was very scrupulous but only considering probably a bit of evidence which  basing her decision on the the end that the testimony of mr taylor at the end of the day that she was she said she was objective and that she testified that when she opened the door he saw evidence basically that there was certainly a fight there were certainly some faulter cas presented at trial there were there was the testimony of the victim which was corroborated by two independent witnesses the victim testified that the defendant in the could have been attacked him but the codefendant him in the legs and brought him down to the ground the defendant then over the head with a bat so badly and so hard that the victim had to get seven stitches at the hospital his testimony was corroborated first and foremost by judy taylor who was the woman whose driveway the victim was shot by a well is she really that objective when it's apparent from record that she had a longstanding relationship with mr ruff m you that but that doesn't mean that it's overwhelming evidence it means that everybody knew everybody yes your honor every single witness here knew everybody else except for codefendant spivey who testified that he didn't he had never met the victim before and for some reason he picked a fight with him on that day the only said that the reason he did it was because the mr motley disparage him trier of fact in this case made the credibility fine she strongly believe that this entire case revolved around the defendant's believe that the victim stole the cell phone the previous day and that she wanted to get back at the victim detail or did identify it as a weight by a however there is no question that it was either one of the police officer said that one of the witnesses also described it as white it might have been judy's whether was never located no you're on it's a baseball bat that's found in the car exactly so doesn't that also suggest this isn't really overwhelming evidence it when you have a complete beating the victim judy taylor was evidence of x really interact conflict with what miss taylor said isn't it because she said it was white your honor the pipe was shown there was a picture shown people's exhibit for even if judy taylor may not have exactly seen what weapon was used she did see the most important part of this incident which was the defendant holding the weapons standing over the bleeding victim immediately after the meeting defendant absolutely not your first of all defendant cannot show that there is any sort of a nexus between the victim having some unspecified amount of cocaine allegedly in the system on the incident specifically because they're all saying that there was three people that beat him up yes your honor that is alleged this is again outside of the record and not in front of the sport well this ear a medical report of any kind that suggests that or not that is what the defense counsel claimed that trial he was attempting to teach but that reports also not record yesterday and that was the medical record from the nurse again it's not in the report that the nurse was great referring to as far as we know this would be again this is outside if it is not before this or in addition the trial counsel was affected because trial counsel here and it is clear from the record that the victim's perception was not heard on that day because he consistently from the very beginning identified the defendant as the person who hit him the try to the trial court as the trier of fact and skates found the victim testimony that the defendant hit him with the bat to be clear and this is a quote from the record she had found the victim's testimony to be clear in this respect in addition as the defense counsel or understated stronger instructor at the court found that the testimony of a narcotics addict is subject to suspicion due to the fact that this evidence that the victim was a drug addict and her five year history with addiction was presented by trial counsel at trial well it really wasn't explored in terms of how recent it was or not recent yes your honor so how do we know this person was even in the attic from this evidence if it wasn't properly introduced in terms of a timeframe your honor we don't and again this is outside of the record but sure haman's argument that this lawyer called how many people at the sentencing hearing to say he was a his reputation was for peacefulness or whatever they testified about suggestions that he's presented mostly these letters indicated that the defendant was a hard working man who was honorable and fulfill this contract there was really there wasn't really any information  of the letters are they in the record they are in the record are and do any of those letters indicate what counsel's arguing meant that he had a reputation in the community for peaceful this or there was i mean by length there was only one witness who or one individual trial defendant himself as pride that it was a hard work and he had a focus the reason this case was continued so many times when all these defense witnesses but there you have any idea you're on the record doesn't shed any light on that honor i am not certain why that it was continued multiple times wasn't where people who were standing there with subpoenas and the judge had to keep reminding them that they had to come back to court after all to publications yes so obviously the state was ready because the defense the judge didn't believe that person and besides he already pled guilty you know he was doing his time i don't know that his testimony was worth anything it's still that's kind of your classic honest witness is not just around here but many of these other witnesses knew the defendant for years and years they were family or very close friends of the family it is questionable how persuasive they would have been to the judge well didn't she say in her sentencing that it would have they would have been nice or something like that if i had heard these people before i believe what they're saying about him didn't she indicate that in her when she sentenced him if the trial the trial judge stated that in light of all of these letters and what they indicated she believed those letters she believed that the defendant might not have been the worst human being ever but she also found that the defendant lost it over a stolen cell phone and that is why this entire incident happened which is really what's at issue in this case is the incident that the defense counsel presented the best evidence that he put both of the defendants in as well what about the lamp report i mean if the if it's out there isn't that ineffective to say that you know you're going to hear that he was using cocaine that day and banned the lawyer doesn't it appear from the record that the reason they didn't get him was because the lawyer didn't know how to do any of this learned even though the judge kept telling the lawyer you know how to do this but the lawyer really didn't know how to do it yes your honor but even if that report had been introduced by trial counsel it would not have made a difference and well how can you say that because the about what justice reus said isn't the significant time this perception they have particular day as opposed to five years past or five years and there is evidence about the  that when he was at the hospital he said there were three people who attacked me you know don't those things suggest that maybe his perceptions weren't very good and that the evidence of cocaine use that day could have reasonably changed the outcome no your honor because in the instant case just because he said that really allegedly said that three people get him after he had been hit on the head with a bat so hard that he had to get seven would not undermine his identification of the defendant is the individual who hit him over the head with the bat which the trier of fact in this case the trial judge in the bench trial found t this other evidence that defense counsel attempted to introduce into evidence would not have undermined this consistent account by the victim from the very beginning from what he said to officer for astro's when after the incident happened to what do you justify to a trial this would not have been undermined by it and allege statement which is not in front of the score which is outside of the record at least three people instead of all right well your position primarily is that these things aren't in the record and that we can't reasonably conclude that they would have made a difference but we don't know really what they say they are the evidence would be ra presenting the testimony of the defendant and the co defendants specifically the codefendant not only took the blame for this beating but this entire incident counsel also presented testimony in this specific case not from individuals of fact found that trait i was not the most credible witness i was she how was she a ph she was interviewed with her prior statements that she had given immediately after she initially found initially stated that both the defendant in light of all of this and in light of the fact that trial counsel managed to get defendants with it of three out of the four charges which alleged see it more serious bodily harm such as permanent disfigure  in light of the council's effective overall representation and the overwhelming evidence of the defendant's guilt in the instant case the fund is not entitle to a new trial for these reasons and for those stated in our brief we respectfully the evidence in this case was not overwhelming at all there was no video of the incident no fingerprints from the baseball bat the codefendant specifically came to court after pleading guilty in his own case and admitted that he was the only one who struck mr mildly and the reason for that was because mildly with the most powerful weapon system of but don't we have to look at his entire performance you have you need to look at his all his deficiencies but a single deficiency if a prejudice is him which means  it and that single there leads to a question that undermines confidence in the outcome trial that's in effect this is the counsel well i guess if it's so severe that it causes prejudice then letters shell that really only one person had any opinion about his peacefulness and that therefore to say that there were all these witnesses he should have called isn't really even reflected in the in the available to him right that they were eight eight of those witnesses of the seven of the eight were really more about it he was a hardworking guy support his family you know honored his contracts that doesn't really go to his reputation conviction to say because we don't have information on the record then about these multiple people who would have said this i don't know that that's in the record but the record is officially there with the at least the one woman who said he was a peacemaker among the that and you can read into some the other letters again the live testimony would be much more compelling figure read in you know he shovels snow for widows and things to that effect that this is a man a gentle man who are responsible man who follows the law who does not the people there with baseball bats or what you call the crowd strange if you don't call these witnesses in to testify live and then just have a letter submitted because you know that if they're open up to cross examination that their credibility may be called into question and we will take it under