gangway and therefore didn't see the bullet strike the victims so i don't see where the victim who was it not possible that they could have been shot and subsequently after they single witness of a different nature then a stranger this is a single women that was very familiar with the defendant and didn't have to the defendant's alleged victim at a time well prior five years and hernandez seven years in this case although there's evidence to suggest that there certainly may have been a more extensive relationship and the news just came out of an eviden yes it did your honor but in the course of the upper denture hearing defense counsel testified that he believed he continued to represent the individual that holds her creative counsel and the individual he prior he previously represent of course not your honor but it is true in a likewise why isn't this case more like what your honor it's not like mike and  several reasons first of all my can specifically stated that that case was presented both in the briefs and our view on the assumption that in showing a deficient representation would be required that's not the case here and that's conflict exists and we decided as a matter of law or do we decide it as a matter of facts it's a matter of life i produced during the course of the evidentiary hearing then the water comes into play because don't forget in her name because just as her made clear that she relied on an attorney billy holmes statement that he continue he believed he had an existing and continuing relationship that if this individual had been caught they bill for two words he would be there and represented in court  arrive at a decision whether or not pay per se conflict exists your honor they're certainly part of the process yes i would agree with that but the illinois supreme court could have chosen those that are going to be just a matter of law it the decision as to whether a person a conflict you get it exists we would we would state is a matter of law in one of the situations where the court has held it doesn't exist with no we could occasion is when the defendant has a prior information about the jones steward such as other possible suspects other people maybe he knew about when jon stewart's relationship with albert cleveland that's very ok so right so maybe you know evidence or a hearing is necessary to flush out those  similar facts being treated in a similar fashion and we have to have similar facts here but we don't have similar facts here we don't have a defense counsel who testified that if this is the vigil had been arrested brought to court i would be there standing alongside of him representing him and to the extent that he's saying that then his loyalty is divided between that individual and the loyalty he  the attorney and hernandez had represented her had any interaction whatsoever with his previous client and the court said that a prior we have not required real representation of the victim to be active we declined to impose an active requirement and  yes the operative word there is an you're in another operative word that would be prior or contemporaneous well then then we should try to resolve which is the more operative word which is the controlling word certainly doesn't fire because next to your honor another governing word would be the word whenever the court said the first a conflict rule applies now it is that like the definition news is it is a war or we're going to go through every single word i mean that they can all be i guess words they can't all happy the deciding meaning to what they can all give deciding meaning to a sentence they'll use it for the same thing your honor whenever prior active they don't require active we not only have eight undisputed prior representation in a preliminary hearing and perhaps further although we acknowledge that there's no proof of that but we also have proof that must be taken as true and second stage that he also represented if the court decides only on the basis that there is additional suggestion or evidence of other relationship yes that that would need never was it was there a question as well as to whether or not this was the same individual because the misspelling of person no your honor the state doesn't c it we could we could rely on hernandez to rule here if we could say that as a matter of law no person but if we say we don't know whether a per se conflict exist the only way to resolve that question is by by way of an evidentiary hearing why isn't that the correct path to your honor we did happen even evidentiary hearing is required here and the fact that should we as as as a quarter of you saying you know what this is this case is close enough that an evidence or hearing is warranted we don't know what's going to happen we don't know whether the court is going to worth it but the trial judge says i give you one your honor we would look at the fact that as defense counsel pointed out there isn't one case in this state nor is there one case in the entire country that substantial showing of ineffective assistance of counsel and clearly based on the affidavits that have been presented to this court it was either trial strategy for the defense attorney who the a spelled her name two different ways in the two different affidavits in this week and stated that she was with the defendant on the night of the murder maybe that's why we you know again those affidavits themselves contradict court found that they were insufficient to warrant a hearing he found that it was either trial strategy at least and because the court is trying to keep something out that makes it more difficult for the court to rule or in fact is moving already he's saying i know i believe your first affidavit i don't believe this is the second been set and defense attorneys were trying to file affidavits up to three days prior to argument being set and even after argument was set at one point the state had the right to file their motion to dismiss and to respond to the allegations that were being made and these filings were years in years and years later as the record shows it was ten years or so after the original position so long as there's been no ruling to be allowed to determine whether or not pleadings are sufficient as in the third argument if we can discuss they have concerning the defendant's right to testify also the trial court said that that amendment  did not relate back to the common court and in his original petition he never claimed that he was denied the right to testify and then ten years later he decided to have them put in his amended petition was an abuse of discretion so there may exist provision that allows the court to exercise that discretion but that discretion we don't believe it's an abuse here is our position there are a couple of things right i just wanted to point out as this court is aware there is no affidavit that was submitted by the defense attorney so rather than having this case reversed as the defense would request if this court were to not agree with the people's position in their brief in their argument today at the very least who would ask for an evidentiary hearing and one other point where the eye witness defense counsel had said that it contradicted the medical examiner's testimony and he would state that it did not she saw that amos was shot in the face and in fact the medical examiner did say that he was shot in the face one other point the two victims were in fact brothers and it's certainly reasonable to assume that magellan may have turned around when he saw that his brother had just been shot and then could have been shot in the chest by the defendant you know when you say your questions now we would ask that  generally provided in civil cases and the civil case which the civil statute which we discussed at length in our in both the opening and reply briefs indicates that a court shall not deny an amended pleading if it relates back to the those are very much so you're adding the second point is that through the state's contention that it was clearly trial strategy not to call these witnesses we would simply point out that with three of the witnesses it could not have been tragic trial strategy because the affidavits indicate that collected all together to talk to them about what they had to say that's a trial strategy and there's no there's no cases that the state has to suggest that a strategy and thirty around or one more quote from people versus hernandez it says a prior relationship falls within the category of per se conflicts and thus we need not inquire into the specific facts and nature and extent of the representation to determine whether the per se rule applies and i