under the rule three forty one we have laid out the facts as they are i agree that there may be a few hypotheticals with the crux of this case is ineffective assistance of coun case and the lack of evidence or the lack of counsel's questioning of witnesses i think is as important as the actual facts in very rare occasions the court has x moving to the ineffective assistance of counsel under strickland then chandler i believe the counsel performance here at trial fell far below the objective standard reasonable and but for their performance there is a reasonable probability that the result would have been different because my  misunderstanding of it was such a misunderstanding that even in his opening state develop a theory that mr miscavige could have ever won this case it was on page one sixty five of the record your hours counsel star opening statement by saying and the conclusion being i don't believe the evidence will show that it was my client that killed him that's murder i believe the evidence will show they don't know what the bullet whoever fired it was the cause of that he admits and he goes down to admit there were two shooters he admits and never challenges the facts that his client at the time might find out mr mcfadden has shot a gun he proclaims the jury in his opening statement on page one so in one of the record as far as the bullet the room bed is problematic he tells the jury did that is problematic because it is a medium sized ball of recovered from mr kirk knowing that the state is arguing that the bullet that struck mr kirk came from a three fifty seven and it was a point thirty five caliber or thirty eight caliber were as mr cunningham according to the state would use a point twenty five caliber so from the beginning from the moment he opened his mouth to rogers mr mcferrin not have an opportunity to challenge the evidence in his closing argument not only he repeatedly stated that the state's vouches for the with this is credibility he himself ouches for the credibility of the witnesses that the state presented he said you're going to believe no matter what i say later on in the day he's going to have a weapon meaning that mr mcfadden is going to have a weapon  i don't know judge this tragedy in my opinion was to try to convince the jury that his client mr mcfadden was not the first shooter not that it was not him that struck mr kirk possibly where as in chandler counsel did not develop any cross examination no meaningful cross examination his cross examination was cursory at b he repeated direct examination questions in a leading man that is not cross examination his theory of the case is your honor i asked me worse to possibly was a thirty eight on page one sixty seven east telling the jury that mr cunningham was the first shooter but also admits that cunningham a heard additional shots and that is in the opening s or he is accountable action of mr cunningham who could have caused the death of mr kirby however he only argues that mr cunningham was the first shooter he never questions that at all during the during his cross examination there is testimony from mr cunningham supposedly there was some kind of phone conversation where mr mcfadden asked was called mr cunningham to come over because of some sort of fight he never raises that because there is the crux of the accountability the agreement he goes into his closing argument and explains to the jury that devon kirk mr jealous had an agreement to go and fight and he talks about this agreement in the plan and he explained to the jury very well what their plan was which would you think would be an understanding of the accountability law but then on the same in the same breath he says that just because mr cunningham shot first my client is not guilty i know that generally it's an issue that is raised collaterally i know that it is an issue that is not normally argued before your honor's but i think that this case falls squarely within the cases that the lawyers performance would fail so far below what a lawyer should do a trial where he comes out an opening statement and admits his client's guilt and then the state the griese with him in their closing argument and telling the jury  only way mr mid span could have been found not guilty was if the jury big nor the jury instruction he had no chance from the moment his attorney open that in his brief the argues that the state did not prove sufficiently that there was evidence to allow the twenty year add on to be put on to a conviction based on the same time as i read it it was an acknowledgment that it applied nonetheless regardless of his distaste for it so i don't believe that this is proper now to try and argue a different point than was acknowledged and can see that the trial and then before i ad and effectiveness i do want to address the arguments that you didn't receive a fair trial again in my brief i argued and i cannot argue that i recognize that defendant had said he did forfeit this are you before the trial court and i accepted that forfeiture and i addressed it accordingly but i found it interesting that in reply he came back and said that the state is wrong that mr mintz batten forfeited the argument regardless of his up or down the record establishes he did forfeit the argument and the record of the law establishes that he must either overcome that or pitcher with plane air or by showing extraordinary circumstances under sprinkle heart of the problem with defendant's argument is that the issues of reprimanding the counsel in front of the jury are statements that were are facts that were never alleged or included in the statement of facts which was one of the things i've pointed out which was briefly address today at no point in time  any of the facts surrounding these reprimands included in the statement of facts today and bat is a violation of supreme court three forty one and beyond that again there is forfeiture but i will address briefly those merits  reprimanding them to the trial counsel he identified two occasions and the first one had to do with officer klein's testimony during cross examination of officer kline the defense counsel went to great lengths to focus on what officer klein did not do when he was at that site he did not include the name or the sex of the person that was found next to the body of the victim kirk he did not interview that witness he did not detain that witness and he did not determine if that witness had any involvement beyond merely being a witness where they involved in the crime and the clear inference from all of that is that officer kline had somehow failed is the duties that night when he was sent to the crime scene on redirect the state asked officer kline two questions the first one was were numerous officers sent to this crime scene to investigate and officer klein said yes and the second question is was it officer klein's job to document and to interview witnesses and officer klein said no he had not been sent there to interview witnesses he had been sent there to try and talk to the victim to try and see if the victim would be able to identify the person shot with those two questions asked and the state indicating no additional questions the state indicated that they were done defense trial counsel without permission from the court jumped up and said delivered this reprimand in a demeaning way but we can't tell that from the transcript we have words on the paper we don't have time so that speculation at this point but defendant has failed to establish how this comment was a material factor in the jury's decision to convict the defendant and therefore he has not established millionaire he also alleges that there was air with the reprimand of  attorney during the state's witness testimony and as the record establishes and again i addressed in my brief there was a prior occasion where defense counsel had been conversing with defendant and it had been disruptive and difficult and the trial court had called the defense counsel on it and so here they were again and after being given this initial warning he was disrupting again and so he stopped it and yes the warning was stern but it was also far from being erroneous it was proper it was given in light of a repeated occurrence of this trial counsel being disruptive to the workroom but again no evidence that that in any way w material factor in making the jury find that the defendant was guilty now i will address the ineffectiveness he argues and effectiveness under two issues one being the accountability and one being a failure to more thoroughly cross examined witnesses and i believe that the record completely rebuts the argument that you didn't cross examine witnesses in a meaningful way if you look at  killings the accusation is that he didn't cross examined thoroughly enough on his memory and on his alcohol use but the record shows he got killings to admit the alcohol use to illicit that he was in fact a drunk too when the officers came back to interview him on the first night he got him to admit that he had consumed a bit of everything beer alcohol wine and he also got an admission from killings that every single morning he drinks a pint of wild rose wine as he had that morning as well before witnessing the murder while trial counsel may have wanted to dish no questions and may personally handle than a different man or the certainly doesn't want the categories of cases where the court has found no meaningful cross examination happened same thing with johnson johnson admitted her location she was one hundred to five hundred six yes one hundred five hundred yards away so there was testimony as to the distance and how that could impair her seeing the weapon she candidly admitted i did not see the weapon fired i saw this man put the weapon in his waistband but i did not see him fire counsel also question johnson about the drove off and then saw him later if she was driving again and he asked johnson about her identification of the defendant from the photo lineup that was provided because although she did identify fenton in that photo lineup she also made the comment that the of the person in the photo was a darker tone than the man she saw the gun so again counsel may have handled it differently but it doesn't mean there was a lack of meaning all cross examination in regards to the accountability i did state my brief and i stand by it it was an articulate and there does seem to be a legitimate argument that he misunderstood accountability but even if you find that the defendant has to overcome the prejudice he has to show that this case would have had the the jury's decision was undermined if there would have been a different mission and it be the evidence  honestly i'm not sure if there's any merit to that i'm i'm not and i come from the position that when you have a client there are times and courts have recognized there are times there is no good defense the defendant isn't giving you a good defense isn't giving you witnesses and isn't giving you anything else and so the counsel for that and it does what they can with what they have which is why in a post conviction position petition when this can be have a record made or maybe that will come to light as i said i acknowledge that his statement about the accountability seems to be a misunderstanding of the way this defendant could have been convicted i knowledge that but again he still has to overcome this prejudice and even if the evidence was circumstantial there was also a lot of direct evidence and it was overwhelming evidence and yes defense counsel acknowledged some of this damning evidence against his clients making the comments about let's not pick on mr killings he's had a stroke and exciter the things that were laid out but he also urged the jury to look at those arguments under a critical eye pointing out that yes mr killings did this but his severe intoxication leads us to believe did he really see anything at all and in johnson again he brought out to the jury that yes she said this but she also didn't report seeing the waistband so it appears to me given what he had in terms of presenting a defense he did the best with what he could and sometimes it doesn't make sense as a strategy to ignore the obvious you to halt killings and to call johnson in just completely throw their testimony out he was acknowledging that the jury was likely going to find their testimony credible but he was still asking them to look at it with their own independent cr t also we have to keep in mind that the jury here returned a general verdict of guilty and in those situations the defendant is considered guilty of all the charges and the presumption is that the jury found the defendant guilty of the most serious charge here the presumption would be that the defendant found the guilty the defendant guilty of direct intentional  murder and argument that he was found guilty under an accountability very has been rejected by the supreme court under similar circumstances and garcia so i would say that regardless of what you find online it's accountability  they the jury nor the jury instructions and i don't believe with all due respect to counsel i don't believe that her answer really answered your question and i don't think that it was she she said not the law mr mcferrin as it is said again in chandler counsel the fact of performance clearly prejudice the fact as the jury was forced to convict convince the defendant of the offense charge as it is here we also find that there is a reasonable probability that but for counsel's deficiency the fission performance the result of the trial could have been different the burden is not for us to show your honour's the the the result must have been different or would have been different it could have been different here absolutely could have been different mr  mr cunningham was never a challenge and the fact that he actually fired a different gun mr mcferrin the attorney for mr mcfadden took it as granted that mr cunningham fired twenty five caliber gun never challenging him once and that issue with defense but that because of mr mitt because the for example that's one example your honor and the difference is that the of your own unless you have other questions i think that this case falls in the realm of cases that must be decided on the record appeal and not to be waiting for  collateral challenge here is down the road because he is serving a long period of such a long sentence he does deserve this is a murder trial it's a young gentleman he does deserve at least under the sixth amendment an opportunity for