and that would have made his defense a lot stronger and the first piece of evidence was christopher totalist with that night that he intended to drive scott and david home because they were drunk obviously the only contested issue in this case was who was driving the car at the time of the fatal accident a declarant makes a statement about some action that they intend to take in the future there's a hearsay exception along the person who heard that statement to testify about what that statement was and that statement of intent to do some act in the future is admissible to prove that the person actually took that it's circumstantial evidence to the person does it make any difference if the police get clearance there in a lot of the cases they do involve clients who are dead often you know homicide victims  cases like that where in the state of the defense a seeking to introduce some statement by that deceased person about the fact that they intended to go to some location and do some math and you know regardless of whether th documentation is sufficient to get the defendant has some reasonable we're not looking at whether that's supporting documentation is itself in the form of admissible evidence nor whether it's reliable and if that's what we decide later on what we're looking at it christopher had driven this car in a similar way that it was being driven in the night on the night of the accident that supports the inference that's created by his statement of intent if he set up one that night that he intended to drive home obviously that creates  tollers that's the most powerful piece of evidence for the fence or the second piece just supports that but if you look at that first piece of evidence that does have tremendous problems in this case we have a case here where it's just the battle of the experts that's something that can be remedied the second stage counsel can either seek an affidavit from elizabeth and if she's not willing to cooperate then counsel can subpoena her fur discovery deposition second stage was this something that was going to should courts have the authority to conduct a second stage must admit it made by the declaring deceased declare under oath at trial here in your other proceeding and been subject to cross examination i'm not familiar the entire is that one of the forfeiture by wrongdoing statutes i'm not cases that's the most common type of statement that's admitted under that exception is a statement by one of the deceased that they were going to go somewhere or do something well you've been through my question ok i believe i they they were brothers but elizabeth was christopher that's girlfriend chris rose is a friend of scott david's there's no indication that they had a particularly personal a ship with elizabeth herself and i would also point out that this is a prosecution that took a while to develop after the after the crash it was about a year and a half until christopher was charged so maybe some truth in time elizabeth was willing to tell christopher these things but now that he's been convicted of this now that she served as a witness for the state she is more adverse and might not be witnesses testimony would be here you have scott and and whitney saying elizabeth herself told us these things we know the basis for their knowledge they believe in detail what her testimony would be and she is an adverse witness who might be going to cooperate before it files a petition the first was the second big elephant in the room in this case is the fact that this court found the evidence in this case of truth beyond a reasonable doubt that this defendant was driving testified logic tells you who was driving man vehicle nobody else could testify who got behind the wheel of that car so we're left with common sense and the expert witness this court's decision that the evidence i can't wrap my head or home counsel's argument as to why it is hearsay or ever be admitted in a court of law i don't believe that this is the defendant's affidavit aside from the fact that it's quite never going to be so prejudiced by counsel's actions because he did exactly what he should have done cross examine the witnesses to the very limits of what he could do i don't see anywhere in the argument that defendant has made where this is going to rise to a level where the defendant can show the fission performance for one i don't think he can do that but even more importantly there is no prejudice in the actions that counsel took at trial and that's the standard he's going to have me he has never offered that this information was available to trial where apparent the defendant doesn't have to provide an explicit explanation for that and that's what we have here we have an adverse witness who we can reasonably infer wouldn't be going to cooperate that second stage counsel wouldn't have to rely just on her willingness cooperate who actually now have th with expert witnesses and competing testimony it's generally up to the trier of fact and determine which expert is reliable and which isn't and the appellate court's going to defer to that but when you get to a first if post conviction proceeding and you have a case with competing at her testimony that's a closed case and you now have new evidence that could have changed the outcome of that trial and all the fin it has to show he doesn't have to show yet that he would meet the stricken standard he doesn't even if he doesn't have to show that there would be a different outcome just that there's there's an argument possibility that there is a reasonable probability when you have oh a person who said on the news and they were going to drive that creates a different story if i knew about the you know you have additional evidence that they drove the car before and have done so in a way that's similar to the way that it's being driven on the night that