defendant testified mr presenter didn't show up they introduced a copy of his testimony from the air sea hearing and on those pieces of evidence the truck court found that mr kissinger did not chandler case is a good way to start because in that case the evidence against mr chandler was far greater than it was in this case the chandler had confessed to police that was admitted to trial yet made of missions testified at trial despite that evidence the supreme court were pursed chandler's conviction because of what was not as bad an error as occurred in this case in that case there was an accidental or rather it was a mistake by the attorney that he thought he could argue well my client didn't say i didn't perform the fatal act of killing so therefore you the jury can find him not guilty well we know that's not true in jail or than they were first where the air was simply a state and where the evidence was far greater similar result in this case told them that he's accountable for the actions that were home invasion how turn is an attorney is prohibited from confessing his client's guilt unless there is a difference route trial strategy and there's  the record the defendant acquiescence in that decision we have neither of those two things here and i think for that reason alone mr mason title to try the whole ball started going downhill when mr kessler sent a letter to the prosecutor in which he explained to the prosecutor how easy his job was going to be because mr henson was going to testify that he committed a home invasion that's essentially what the letter prosecutors up to that point there was no indication that the prosecutor was going to attempt to prove a home invasion if you look at the information in the indictment that followed there were no facts contained within those documents that would give passenger any idea that the state was going to see him on a on a theory that their own vision or the direct result of the letter that he sent to the prosecutor was the prosecutor essentially  you're right my job will be easier i'm going to charge felony murder and home invasion and that's what he did in this case this is very similar to what happened in the newburgh case except that our case is stronger found guilty if only were the jury's not going to ignore the instructions if mr kissinger never simple or prosecutor these charges only were going on vacation would never have been filed if you had better understood the law but doesn't mean the evidence was overwhelming no one saw who actually shot mr scans the fingerprints were found on the guns forensic evidence that was found by us inferential that mr one of the things i found serving found what happened at trial was the fact that in the letter that he cites back to the letter son the letter that mr presenter sent to the prosecutor was very enthusiastic about the testimony man just with yes and for these reasons one of the things that i do want to do though is in closing this court and it's a public court decision at certain questions and i think the record that we have before us answers those position worse by giving the prosecutor more evidence of guilt and finally what the result of the president proceeding have been different at present are not simple but i think i think the answer that question is yes also what scores good morning and  just heard and a lot of this in the free focuses on what the deficiency was but it didn't focus on what the prejudice was that resulted and the u s supreme court made abundantly clear just last week and can't versus alabama versus alabama that no matter say it didn't prejudice his clients the presenters letter preclude involuntary instructions now has interest letter did not what precluded involuntary instructions was the state's decision to withdraw the other murders that were the intentional and knowing that were charged and to go slowly with felony murder that was the state's prerogative to do it and that is what they did here it was not caisson just letter that precluded that instruction wholly unrelated evidence that anything that was in that letter that the defendant had in fact committed felony murder the state did it so what good was the admission in terms of looking at prejudice there was no value to it there was no value to that wife she testified that a man wearing a ski mask in camouflage and terry shot her husband entered the apartment but a gun to her head and threatened her asking for items that she did not know what they were video surveillance at wal mart just a couple of hours before the murder showed this defendant in fact camouflage jacket katie favor the live on the same floor and who apparently have been intimate with defendant knew him well testified that after hearing a gunshot she saw a defendant wearing the defend his name on a novel of it's addressed to him defendant's key to his apartment and another on below in that pocket the sleeve of that jacket tested positive for gun residue a pair of reebok shoes that were recovered when defendant was arrested in tennessee matched a gel left taken from the kitchen floor of the spanx apartments again evidence defense and defendant entered that apartment defendant's electronic monitoring went off at approximately the same time as the murder indicating he h exceeded the one hundred meter boundary around his apartment all of this evidence and much more was completely unrelated to cats and jurors letter all of this evidence was completely unrelated to the testimony the defendant would later gi and all of it resulted in the jury being instructed on felony murder defendant failed to establish prejudice without the charge of home and in the felony murder charge if they've gone to trial of the original charges could the defendant have been found guilty of felony murder defendant still would have been found on the murder and i would know the defendant conceded this in the initial rate based on the testimony that was given based on what was presented to be there again there's one charge of murder in the state he was charged with murder he was found guilty of murder and i cited two cases alan and process shockey i'm not sure i'm pronouncing it correctly but they're both supreme court cases and in both of those instances defendants were initially charged with give their knowing or intentional murder based on testimony that came out during the trial they were subsequently found guilty of murder and in both instances the defendants appealed they said that it was error and the supreme court said no it isn't we have one charge of murder he was charged with murder he was found guilty of murder even if the felony of so it's not a term yes and in both of those instances the predicate felony was not had not been previously charge i also call into question nature of the confidential communication and i say that based on the fact that the defendant here specifically say he definitely wanted this information shared to be used he testified at the frankel hearing he did not give permission for class injured to use it me to use this but i talked with him for two hours that out what the strategy would be and he understood it and he agreed and again it was an implied agreement messenger acknowledges that completely but it was still a great what is notable about that frankel hearing if you really read it is the defendant defeated his own argument of privilege while he was there he was unequivocal insane i wanted the jury to hear this i needed the jury to hear this if his intention all along was it was shared with a third party the jury he waived the privilege he was not prejudice i also want to sponge of our minds that were made in her five three one there was great emphasis put on this whole temporal connection between when the initial disclosure was made and the fact the defendant testified subsequent to it truthfully it's a distinction without any relevance here the case law says that any disclosure is an indication that privilege has been wait there are no temporal limitations made on those fair holdings and i've cited those cases in m not cited any cases suggesting that if you testify subsequent to an unintentional disclosure you didn't actually waive your privilege he doesn't cite them because they don't exist which brings me to the next point the defendant did testify  voluntarily justice connect you served on private and that was a case where this exact scenario was rates and it noted that whenever a defendant raises an issue on a right to testify and they are convicted this is the problem that will come up if they did testify they will say that their attorney force them to testify if they didn't testify they will say they wanted to in their attorney prevented them this court characterize it as a lurking off and here we are so to rectify that went through everything when the defendant said i'm being railroaded i don't think i have a choice the trial courts of well ok have you been told you can testify have you been told you don't have to test is anybody making you testify and it was clear it was not an easy decision for him it was a dilemma but only if mom and despite knowing all the instructions of the sport in the freiburg case here we go are we're dealing with the aftermath of that lurking bond that has now once again exploded although the evidence suggests that the exchange you had with the show that it was a difficult decision it does not support a finding that his testimony was given involuntary it was not subject to subpoena it was not given under a grant of immunity which are cases where courts have found testimony to be the worst those are not the facts the testimony was the direct result of defendant wanting the jury to hear his account at the time he was making the decision to testify what the jury knew was nothing involving the letter the jury knew again that the victim's wife had identified a man and a camouflage coat and the circumstantial evidence presented by the state overwhelmingly show defendant was that man in the camouflage because that's where the jury sacked ok that was a narrative defendant didn't want this jury to consider and challenge so how does he challenge it he has to get his ration he has to get up there to be fully informed and part of that informing defendants of the risk responsibilities of whatever strategy isn't but when you look at the air d c hearing look at the frankel hearing and you look at the recollection of things that happened he was fully informed yes prior to trial in those days leading up to trial there could not have been any warning of the risk of testifying with felony murder yes and your knowledge is that you didn't have it on his radar anywhere but after he was charged he spoke to the defendant two separate times he spoke to him prior to jury selection and he spoke to him again after the jury selection and the record shows that it was a rather combative conversation to defend it was unhappy which everybody understood the defendant the evidence had come in as messenger had feet feared it would showing that defendant was the one who had shot the gun and found it was the one who had entered the apartment and defendant was the one wearing the camouflage and the inclination the understanding was the defendant was going to get on the stand and say it wasn't me it was bryant shot my cousin and cousin to explain to him i can't let you do that i he said i remember i said you can't recall you cannot withdraw but i said i would allow you to put him on the stand get basic information and let him terrorists testify in a narrative fashion that's exactly what happened here so the suggestion today that presenter was encouraging and forcing this testimony i've read the record may be a one point he was he was saying the jury won't hear this without you testifying but when it became clear that that testimony w explained which the defendant acknowledged hasn't to be responsible if you put him on the stand and let him testify and truthfully clearly there was more than a cursory conversation after the charges were filed but before the defendant testified as to what his testimony would be what the risks were of such testimony what were the responsibilities if he opted to testify he made that decision that was his decision it was not involuntary respectfully the trial court's decision finding that there was no prejudice that resulted and therefore no ineffective assistance was not a manifestly difference on the other arguments in terms of whether the passenger misapprehended the argument i stand by trial this is very close to the head of a case that chandler sites where the attorney got up in closing and said you're going to find my client guilty after you do then we'll talk about  d anyway i disagree there was no notice in those in the information or indictment that would indicate that the state was pursuing those charges three cases that stated cited maxwell allen and r chalky all those cases involved in instances where the defense was on notice specifically the courts would not on that fact in saying the felony murder charges were appropriate maxwell there actually was an attempt robert charge that was in existence the beginning trial so the prosecutor charged intentional murder and attempted robbery then at the end he gets the instructions on felony murder the calendar saw rosso truckie cases neither of those cases was the prosecutor is attempting to prove a home page those facts of the home invasion were known to the prosecutor never charge yeah i don't understand that either but let's say after the trials completed the evidence is sent and there's evidence presented to the jury that there was a home invasion effect because the victim's wife was actually threatened there also and the victim was shot in his own home as they were trying to get in the door couldn't the trial that's too late you have to let the defendant know that if you look at the court the opening statement of the prosecutor he really doesn't talk about the fact that there was a home invasion he's talking about an intentional murder and each and every one of those there is an indication that the defense knew to this was the way things were going to go in this case the only reason why the case went the way it went was because of those facts attorney's letter to the prosecutor helping out that there's a felony murder so absent that latter there would be no notice of the facts that this is the way of states sitting right i don't think if you process would be satisfied if the one testify really and i was forced to testify here we've got a case where the defendant was never told that his testimony was a confession and i'm fairly confident that the bomb was when he found out that he was confessing to that but for trial counsel's deficiencies that but if it was purchased the reasonable probability is whether there was a probability that undermines the confidence in the result i think on this record there is an undermining of that