may please the court again as i stated my name is nicholas curran and i represent the defendant appellant point massey there are two issues in this appeal that i would like to argue before the court this morning the first corresponds with the first issue we raise in the brief which relates to  mr massey being denied effective assistance of trial counsel by virtue of various acts and omissions committed by his attorney both before and during trial now the essence of our effective assistance claim is that based on the evidence mr massey is attorney failed to present the only viable defense that was available through him which is that although the defendant was present at the scene at the time of the shooting it was his codefendant working who committed the shooting and that mr massey was not accountable for mr lee's actions a trial counsel presented an identity defense basically just jury my client is not guilty because he was not present at the scene all of the state's witnesses that testified to the contrary or made statements before trial were not credible or believable for whatever reason the problem is that that defense was completely unreasonable you had every single witness who testified on behalf of the state who was a witness to the occurrence either testified at trial or told police before trial gave a handwritten statement that mr elliott mr massey approached the victim's car shortly before the shooting occurred not only that you have surveillance video which corroborated the sequence of events to which those witnesses testified and or told police before trial that being a procession of three vehicles passing before the victim's car and then about a minute later returning two individuals approaching the car and then the he'd be right at the scene right correct and no it wasn't clear who may have had a gun there was no one testified they saw anyone with a gun well i was testimony by one of the  the state's case to subjecting it to adversarial testing and based on the you were futile evidence that those two individuals were present at the scene at the time of the shooting arguing well my client wasn't there if anything i believe enhanced the appearance of his guilt in the eyes of the jury why would he deny that he was there if he did not share in the intent with whoever it was that committed the shooting to actually perpetrate the shooting to deny the obvious i think only it would have enhanced his guilt in the eyes of the jury now in fact that there was a substantial amount of evidence that trial counsel could have pointed to to argue that courtney was the can't speak to his recollection of the evidence or his reading of the record we have juries ever determining what this was what the likely scenario was right well we had direct testimony from jarman's who was in a car with jasmine brown that tape who was later identified as john take carpenter after that group left the party they placed a phone call it was on speaker in their car and the person who picked up the phone was courtney not clint massey so you we had a conversation with those individuals and then it's courtney eally who leaves physical evidence at the scene he's the one who whose cell phone is left in the middle of the street at the scene of the shooting which i would argue is consistent with the idea of perhaps him pulling out a firearm this foam falling out as he's doing so we know is handling the victim's vehicle  based on him having left a fingerprint on the driver suburbs usually a passenger side window of the victim's car and then you have mr lee above and beyond doubt returning to the scene in an effort to recover his cellphone which i believe his and the indicator of him try to avoid detection or cover up his connection to the crime scene which an inference from that i believe is that he has a guilty state of mind now i'm not it would have been a much more viable strategy based on the evidence at the scene i mean when you have such overwhelming evidence that mr massey is present at the scene in your defense is well he's he wasn't christiane she told four different stories only one of which implicated really it was really that's a group of women it was their plan to establishes mr easily and by extension mr massive presence at the crime scene and in fact you know if you look at one of the other parts of this is the witnesses testified that mr massey was wearing a distinct article of clothing  brightly orange and black stripes jumpsuit and it's it's hard to make it out in the surveillance video but it does appear as though somebody wearing something approximating what the witnesses described does approach the victim's vehicle all along with severance was denied so just to clarify if this this is part of the argument here that mr massey is attorney was kind of asleep at the switch mr massey's attorney never filed a motion for severance i'm sorry to make a motion itself i think that may be true certainly i think the best practice is if you're going to adopt a motion to separate his you didn't say anything right to make that very clear on the record and to file your own written motion right which mr grass attorney never did but if you play this out you can see how it's prejudicial because if they're being tried simultaneously they can't point the finger at each other and a that is a valid strategy however in order to effect weight that strategy he needed to separate himself from evenly which he never he never did all he did was so he put his stake in the ground on this notion that you can't believe the state's position that my client was at the scene which was contradicted by every piece of evidence that was admitted at trial and so you know the obvious defense in this case i firearm and again this is a this also goes to just briefly to touch on this and i know some of this is treading over ground your honor has already been over but that the most reasonable inference to draw from the ballistics evidence is that there was a single shooter that the re you had two bullets that were recovered from the victim during the autopsy that were both fired from the same up firearm base and they were all nine millimeter but they could have and they couldn't say whether it was a  true i think my understanding of the ballistics tests one mistake and correct me if i'm wrong was that they were able to determine that the bullets recovered from the victim were fired from the same firearm as the bullets recovered from the vehicle were four bullets total they were all fired from the same fire are so the only other way you could have had another firearm used in the commission of this offense is if from a few feet away someone fired a different weapon and there was no bullet found  either in the victim or in the vehicle i mean i suppose it could have happened you can't rule it out but the reasonable inference most reasonable inference to draw from all of this i would submit is that a single firearm was used in the commission some of here's here's the choice faced by mr massa's defense counsel either he sticks with mr healey and they're trying to gather and he hopes that the jury's not going to be able to figure out who the shooter was and he gets off or he says to the judge you know what i'm going to argue that really was the sole shooter so you can't just summarize my defense is going to be antagonistic you have you know what i have a better chance of an acquittal by sitting next to ealy and having this jury confused then being sitting there by myself a defense table and having them have to well he he never presented that argument to the jury he never argued my client is not guilty clint massey or excuse me court is right and have he told the trial judge that that is going to him guilty of first degree murder whereas if i'm the sole defendant this jury has a choice between a quitting just me or finding me guilty as i'm standing next to the car in this  why don't my put my my view on this is that doing it in the matter he did it without severing the cases did not it vance his efforts to try to if you are what you are you know the game made decisions they were strategic decisions that he believed were in the best interests of trying to get this defendant off well your honor so that there are a couple things i would say to that simply because somebody believes that what they're doing is reasonably sound or strategic does not make it immune from challenge it is an objective standard understood so then give us the prejudice permit so the prejudice is there are a couple things one is  and this is something that was alluded to in a prior argument you have a statement by corey courtney healy after the shooting occurs where he is conversing with jasmine brown where he's relating what happened and he says to her after they went up the car up to the victim's vehicle somebody asked him where the victim was from he said right here and that it was man down and the state utilized that statement during closing arguments to argue suggest a motive that it was retaliation that it was related to neighborhood conflicts and that was the impetus for the one of the impetus for the shooting that statement was not admissible as to clint massey if you can if they're having separate trials that statement does not come in correct and and my question was couldn't a reasonable defense of time before trial have i have a better chance of getting my client off with all this to have that opportunity with ealy sitting here to say we've got two people charged with murder here's all the evidence we've heard about this guy let's pick him let's let him off where it's if he's the only one sitting at the fence table his his lawyer michael said they're not going to be told about anybody else but they're going to hear all this evidence about this shooting and they're going to see the video of massey standing right there they don't know it they're not know what happened to porton really they don't know anything about him and the jury is asked to decide is this man the only man sitting in front of you hilt and there are choices to find him not guilty to refine guilty and it just seems to me that an experience criminal defense lawyer would not want to be the only one sitting there so you're suggesting that the jury would have convicted him just because they want to hold somebody accountable not knowing if anybody would be i think the jury the jury would have convicted him because there was sufficient evidence to convict him certainly and i'm not i'm not disputing that but what i'm arguing is that is his attorney  sacrificed the only viable defense in the case which was to argue easily didn't my client did even he did it my client did die and there's no evidence that he was accountable and he because  cases were not severed because he didn't file a motion for severance although he had said to torture granted when afterwards he he sacrificed his ability to do that very briefly because i am running out of time i did want to touch on the you had to go if you decided to an opinion which we could look at but there are other questions that are raised by the whole situation as to what was going on for a few weeks before she does so it in my view the only question is whether or not they actually received notice of the hearing and there's no evidence that the notice and the motion that was filed that's part of the common law record does not indicate that mr massey and m eagerly were served with a copy of the motion or notice of the hearing so i don't know how else we prove a negative other than i supposed to have an affidavit for counsel verifying that he never received notice but notice under the law has to be established by the party upon whose burden it is to serve notice and in this case the state didn't do that and as a result you know you have a situation where caprice johns you have a trial judge who says well i'm going to hold you without bail because even though i believe you want to show up i'm worried that you're going to be extradited to indiana if i let you go and then what the state does is they argue during closing you know to bolster bond because without being given the opportunity to sign a written undertaking and post a personal recognizance bond she was just incarcerated and so she had an outburst so in addition to being held without bond pursuant to the state's motion she was also holding contempt of the morning again phrase of strategy is virtually unchallengeable it's all too easy to second guess a strategy after it has failed that's why it's necessary for the defendant to show that the strategy was irrational  not just that it was a more viable strategy or more valid strategy with hindsight what's your current seems to suggest that it was your rational for defense counsel to argue to this jury that my client wasn't there this is a mistaken identity and that's incorrect your honor because there isn't there so it was not a foregone conclusion that these witnesses would be believed by this jury they were absolutely stories that changed repeatedly with all of these witnesses and what was necessary in order for this for massey to be proven guilty beyond a reasonable doubt it was necessary was for the jury to believe the accusations y there's no physical evidence connecting trial counsel's client to the crime scene and there's one fingerprint on the window of a car connecting  defendant to the crime scene this discussion about this about the codefendant leaving the cell phone at the scene that's not that doesn't actually do that that cell phone was remotely wiped that cell phone was remotely w there was nothing got in from that cell phone except for the actual cell phone number and that information was handled in a motion in limine it was not presented to the jury that there was no fingerprints on that cell phone there was  that one of the shooters left the phone behind and there's an extra phone that's probably sion but you still have to rely on the on the finding of credibility of the witnesses to be able to get that the only witness testimony and corroborate what the eyewitnesses say at that video alone proves not that video alone is incredibly grainy and it's only through credible testimony of eyewitnesses that that video can be can be converted into something that a jury can understand and accept and that's what herbert brown and johns did that's what juries are are supposed to church the fact finder here evaluated all the credibility decided whether or not to believe their accusations or to believe the many arguments that were made by both defense attorneys about why they shouldn't they chose to believe them and that was absolutely appropriate but it was not a foregone conclusion it absolutely was not a foregone conclusion the jury was instructed about accomplished testimony and i cross examination of all these witnesses the defense attorneys explored the culpability of each of these witnesses and then the jury was instructed that complex testimony should be considered with caution so this was not a foregone conclusion it was absolutely the identity defense was absolutely the best chance that this defect it defendant massey had for acquittal it's only with hindsight once they've been file credible that anyone can suggest that they should have conceded that he was present at the murder scene now keep in mind what we're talking about here is not can when you argue identity you're not conceding mere presence everything that was argued everything that was argued did not concede any of the elements of the offense a sense that there can't be prejudice because of the fact that the jury still has to decide each of those elements the journey has decide whether or not he was either the shooter or accountable or merely present with regard to severance the fact that this was a joint trial gave the jury someone else to blame and certainly defended massy sitting at counsel table next to defend you really would look less guilty in that context by comparison that's a valid strategy and with regard to severance there is no prejudice because absolutely every single piece of evidence that was introduced at this joint trial would have been introduced against massey in a separate trial the statements that uli made to johnson brown those were  those would absolutely have been admissible now the question the real question is why would why would the attorney for massey even want to keep it out whether it's a joint trial or separate trial why would johns who both by the way both testified concerning this statement so it's testified both of them that he asked the question that decided the victim's fate massey's entirely absent and unmentioned in that statement met with two women of the eyewitnesses johns and brown who were upset about what had happened at wentworth gardens at a party there where there were as there were shots fired up they call these two individuals ilya massey who are together they decide to meet at this windies on fifty fifth street they all meet there they proceed in a caravan with elian bassy in the b vehicle they'd drive back to thirty seventh street wentworth gardens and then they all get out of the the vehicle together they both approach the passenger side of the victim's vehicle together we know this both from the testimony of the eyewitnesses who were in different vehicles behind him in the caravan but also from the c h p video they both approached the passenger side and and then then you see it in the video you absolutely see the vehicle hold back and then pull forward and what you have it is a shooting you have the door opening you have two individuals defending yuliya defend a mask standing in front of the open passenger door of the vehicle when the victim was shot four times then immediately after that both you and bassam you both go back to the lead car and then this whole caravan returns to where they came they leave thirty seven they go back to fifty fifth street they go back to this  o a gas station at fifty fifth street this is absolutely shows that there was a plan here there was absolutely an in a shared intent to commit a criminal act criminal or tele ation and what you what you see after after the gas station which you have to the gas station is additional evidence of the fact that there was a common criminal design and what that is is attempts to conceal and attempts to avoid punishment and avoid being caught and that's when johns and brown and defendant usually work together to try to retrieve incriminating evidence from a crime scene and end up lying to lead house we don't know where massey when we don't know where massey went after they went from thirty seventh street to fifty fifth street yes but all of that all that is circumstantial evidence of the common criminal design and based off of that it's but it's representative of this this caravan of people who are upset about the shooting at the party doing something about it going back to retaliate with violence  inquiry and the first one is whether or not there was actually a violation and there wasn't a violation of the right to be present in this case because it's not a critical stage for the defendant the defendant at against him in a homicide case so this doesn't fall into that definition of a critical stage his absence didn't write him out of a substantial constitutional right even and back down which is  brief states that under normal circumstances other material witness bond hearing is not a critical state there's in that case all parties agreed that it was a critical stage so they needed the court in mcdonald immediately went to the question of whether or not there was prejudice which is also a problem for the fun in this case because you can't show prejudice what what his argument is one second i want to give a little bit of context to that statement that was discussed because even as attorney in his closing argument told the jury that johns testified in prison stripes for thank you very much so uli's attorney in closing argument told the jury that johns testified in prison stripes for contempt of court because it's hard to tell the same  twice that said i fifteen to sixteen in the report of proceedings the people's response in rebuttal was actually john's testified in prison stripes for contempt of court because it's hard to tell the truth when it incriminates your friends there was an absolute the appropriate response and a reasonable inference based on the evidence and it certainly wasn't a misrepresentation and i want to point out that john's admitted that she did not want to be testifying against her friends and she testifying against her friends all of those all of those expressions of willingness to come to court the times made those were all made after she was in custody before she was in custody she was hiding from subpoena service for seven months in what the trial court called one of the most comprehensive searches for witnesses that i have ever heard so when she when she finally did come to court she she was in custody she was in custody for several reasons as opposing counsel acknowledge she was in custody for contempt of court so that statement by that statement in closing argument by the prosecutor was absolute correction was in custody for contempt of court and she was in custody for contempt of court because she didn't want to come to court the details of it that the details of how that played out were not presented to the jury because the material witness facts were not presented to the jury and i would argue that no reasonable defense attorney would want their jury poll that a particular witness was certified as a material witness that would bolster the witness that would create the appearance of that of judicial imprimatur on this particular witness so if the fact that there was a material witness certification of john's was not mentioned and what's important is that without getting into those circumstances the prosecutor made a completely accurate statement about why she  custody and what inferences could be drawn from that and was really just commenting on things that were directly testified to by john's so based off that there was absolutely no reason to object  if i if i may i would just ask to make one last point with regard to the first issue with regard to the arguments and choice of strategy and i want to point out the attorney for massey couldn't point the finger directly at healy he couldn't blame explicitly but he still benefited from the fact that you was next to him looking more guilty and giving somebody get somebody to the jury to play and that is absolutely when you look at the closing arguments for massey that's absolutely something that massa uses in that julie joint trial to his advantage he says he tells the jury of those three eye witnesses did any of them point to my client and say he was the shooter did any of them point to my client and say he was in the orange outfit that day not so as far as it was possible there was the opportunity and it was taken in order to be able to blame you lee while still having all of the benefits of challenging the credibility of these witnesses for if there are no more questions for these residence the state was simply unable to locate her and when she was brought in front of the trial court pursuant to the material witness hearing she became upset when the court ordered her held without bond simply because it was concerned that she would be extra extradited to indiana we're not arguing that this was a critical stage and by virtue of him having not received notice or being present that alone is enough to reverse his conviction that's not what we're arguing what we're arguing is that if if counsel had received notice of the hearing and was present for the hearing he would have been able to object to the state's knowingly false and i will stand by that knowingly false argument during closing where the state said caprice got on the stand remember how much she wanted to be here she wanted to be here so much that she was in a black and white striped suit she was in custody she decided that she would rather not come to court and be in contempt of court than to walk into this courtroom and point out her friends that she was at a party with and say you know what yeah i saw see day he was shooting a gun and round over here was right next to him and they were doing it together caprice johns was not in custody because she said i'm not going to show up in fact the opposite is true she said i will show up and i will sign a written undertaking to appear in court at the trial court said i'm not going to do and i can let you do that because i'm concerned that you're going to be extradited and then we won't have will lose track that was a blatantly false misrepresentation to the jury and if trial counsel had been present for the material witness hearing he would have a right to object and say that is not that that's an improper argument because that's not at all walsh why she is in custody secondly in terms of again this idea that mr massey benefited by having  next to him we have two juries in this case one the jury that is assigned to mr massa's case doesn't know that mr hughley is going to be convicted so they would be in the exact same position they would be if the cases were separated the statement which is merely a narrative of past occurrences in which is not further any objective of the conspiracy let the third call the messy house of the not object the admission he did not he should have i don't know why well i mean because  the statement technically i guess was admissible as to mr uli but it was not admissible as to mr massey mr massey was not present when that statement was made he did not assent to it in the statement itself is not part of an effort to further any objective of the conspiracy or to conceal the crime it's just a statement explaining what happened but again it wants the finger pointing as to him defense table it doesn't because the statement doesn't say who fired and they go into what they came here to do to hurt somebody to kill somebody who is from that neighborhood so the state's using this out of court statement by mr eally that's not in this for us to mr massey to argue that they're both guilty and it's clearly not make is you know again when you have the blending of these two defendants together it just creates confusion so what mr ease attorney argued during closing is well even a more interesting thing is that you have caprice caprice that she never saw to shoot gas and so she heard two shots she didn't see who shot to cue says well i saw a rando shot that's referring to mr massey this just doesn't make any sense not a single one sing dude that's what she testified to so by process of elimination you know you've got somebody else in addition to the state or another attorney getting up in front of the jury and arguing the case and saying well nobody said my client shot there was a witness who said mr massa shot but nobody said my client shot so now you have mr massey who is not only arguing against the state's case but in effect is also arguing against mr hughes case so i think that's probably a good place to close