least the court thank you your honor so this case illustrates perfectly why we have and why we need scoping rules and the problems that ensue when those rules are deliberately violated the prosecutor in this case committed that he failed to disclose to defense counsel prior to trial and alleged oral statement attributed to david by mr sutton that david intended to as money but this was the sole direct evidence the state put on a trial that supported its theory that david was accountable to mr vargas as actions and that he knew and testimony of the states to keep eyewitnesses at the benito's brothers michael and joseph their testimony both illustrates that david was surprised with mr vargas took out that gun when just took the money and then didn't come back the evidence shows that david called joseph on the phone and said hey what happens joseph said i'll call you back never call back so then they show show up back at the house and the testimony is the same  david knocks on the door michael benito's opens the door david says i don't want to talk to your brother don't worry there's not going to be any trouble just a comes to the door david doesn't threaten him he says what happens what happened and just as just wait a minute this wait a minute and up going into the garage if she gets a phone call and then that's when mr vargas comes out the car and pulls out the gun and what is david's reaction it's one of surprise he says and this is  does brother's testimony chill out calm down let's forget about it let's get out of here those are the actions of a person who didn't share in that plan or an intent to use a gun to get that money  it not only destroyed that theory of defense it made that the defense counsel look like a liar in the eyes of the jury of his opening statement he doesn't say anything about this oral statement because he doesn't know anything about it he tells the jury the evidence is going to show that david did not know at this point he didn't he didn't know that mr vargas was going to bring a gun and use it to collect this money and that's damage that just can't be undone that that so far in the trial the jury has heard all this evidence that's backing up the defense theory that that david didn't know this plan all the sudden the surprise evidence comes out and the jury had to be taken aback by that the record is sort of is a little unclear  when the court was apprised of what had happened i believe shortly before lunch after the cross examination of vanessa and i'd like to hear your interpretation or your take on when it was that the revelation was disclosed to defense counsel the revelation was disclosed  sleep would you like to respond the p s a says judge we did tell counsel that the statement that she'd made was not in any report she was asked about that on the witness stand and this was a statement that she just disclosed when she was interviewed the court did says when was that state's attorney says this morning judge and the court says motion for mistrial is tonight your position is clearly from colloquy that the defense was not alerted to this before she took the stand absolutely your honor and that's what the defense counsel says on that side did the stated miss to that the state does not deny that the state said this morning this morning when when she when they were prepping this witness for trial and what's critical is that the prosecutor has and i'm going to need to disclose that information so whether it was that morning prior to trial or right before she testified that twelve to disclose this information like he should of to the defense counsel when he learned of it at that points that the defense counsel could have asked for a continuance i think in that in that instance a continuance makes sense at that point the jury has not heard this testimony the defense counsel hasn't been made to look like a liar in the eyes of the church here or at least incompetent for not addressing the statement at that point you're in the middle benson also part of investigated the circumstances of this alleged statement further  we don't know what he would have found they could have had more time to develop an alternate defense theory or at least adjusted their opening statement to reflect the existence of the statement here in the middle of a jury trial would that have  viable relief to the defense to have a continuance that i'm not at that point and that's what makes this case unique is that at that point the cat's out of the back the jury's heard this this alleged oral confession by the defendant and this is the only direct evidence of this of the plan that that shows that he he could have been accountable for the suspense and at that point that that defense counsel's credibility is at issue with the jury there and there's just no way that a continuous would undo that was convicted for that the defense counsel was completely surprised it made him look bad in front of the front of the jury it made him completely kind of off the cuff come up with this alternate defense the about it when they came up that morning they knew about it why didn't they tell defense counsel produce i can only presume because it's not in the record i can only presume that they lost track of what was in discovery ok and that they thought that they tendered it but did not it's an air should not have sat there the judge did not conduct a hearing into this matter there's no evidence one way or the other as for the willfulness or the circumstances of how this came the of all there's really no evidence of prejudice defendant did he have ample opportunity to cross examine and in fact he did everything that he would have been able to do if he had known about the statement defended i guess limited wait a minute food known about the statement perhaps he might have adjusted his defense his opening statement could have been different he could have attempted to blunt the effect of that he could have had a different interpretation of what was  the jury we don't know what she but he just he just found out about it when she slipped it out on direct examination that's the first the first attempt he had it was coming i understand it and he recovered beautifully i don't doubt it caused him some discomfort but he was able to recover to the point where defend it was a coup good of the first degree murder that's the crime that apparently according to this statement that she made that's a crime they were going to go over there to commit so what  cross examine her about the fact that she never told the police she never told the state's attorney until their morning she didn't tell the grand jury about the statement so yes the first time you tell anybody this morning why is that because your boyfriend is yes there was however it is not per se reversible then defended not only recovered he actually won the point he convinced the jury that his client was not guilty of first degree murder and the statement as to the second right the attempted first degree murder is totally and completely irrelevant defendants either did not have the untaxed to when they were going over there to commit any crime that's was his original theory  withdrew from that intent by telling daniel virus chill let's get out of here forget it and defend it asked for and received and instruction i would drop the jury took one or the other of those alternative what about the question that was sent out by the jury and the answer given to the judge and the state conceives it was an incorrect answer on accountability yesterday well couldn't have been that there were jurors who were talking about other crimes that might have been intended by this pair that came over there i don't think so i don't think you could you can fairly say that with fact that before of the attempted murder was committed defendant was found not guilty ok that what happened before work before the state or with the state what makes him guilty is the fact that when daniel vargas takes out the gun and fires shoot somebody the defendant at that point doesn't matter intent was required by the jury to find him guilty of attempted murder than it was murder it's a specific intent crime it's specific intent to a going to bash he doesn't have to have specific intent to commit the attempted murder wrist shooting people you can hear the gunshots he was there when the first shots and their right to calm him down while they're over there that was before the gun went off and with a gun what goes off he runs good question about any kid got his current through in a way we wouldn't be here this morning he would be guilty of anything but he did he waited for daniel marcus to try him away to a place of safety and by attaching himself to daniel barcus at that time by day action he makes him he makes himself accountable for whatever daniel vargas does during the course of that day interim period well the jury have some question about it and the question that they sum out to the judge and the answer he gave was not in accordance with the law and you can see that yes i do i do concede day but i don't think it makes any difference because the the verdict is consistent with both the facts and the law and we really cannot presume to know what the jury found we do know that the facts make the defendant liable for attempted murder under account ability theory and the defendant does not argue any one way or the other as to the impact of the judge's irania stance or so we have to go with the verdict and the facts and the law and they're all consistent and it's consistent with all of the facts it's consistent with the finding of not guilty on the on the first degree murder defendant that attached himself to daniel virus after the first degree murder and he made himself accountable and that's a little for the first degree murder in the case because he merely ran to the car and then drove marcus away after the fact that it that from people versus present the whole line of cases