question to be answered at the second stage of post conviction here in the act is whether or not the defendant has made a substantial showing of the constitutional violation in her petition the defendant has led allege that she was denied her right to effect it applies to the defense case the question becomes whether or not she's made a substantial showing that her attorney rendered fisher performance and that she was prejudiced by that official performance such an expert in fact we attach a report from an expert in a mental health expert to the post conviction petition i like all of the various opinions to which she would have been able to testify that would have bolstered the claim of self defense at trial d deficient aspect of counsel's performance based on my research i haven't found a case where this precise issue has been raised movie cyprus cases for is the proposition that this kind of testimony of this kind of cell strategic decision for now having called an expert in bed woman syndrome but that's not a determination that can be made at the second stage that's a third stage issue in my view th a better woman cases usually tend to involve some type of into that relationship the relationship husband wife relationship i never see maybe it's out there but i've never seen it apply to   started to fill the role of the victim's wife after his wife passed so six years before the shooting took place so it is a little bit novel in that setting and of course there is no suggestion i think sexual between the defendant and the victim the idea though is that he started to treat her in just about every other respect as he treated his wife before her passing he also treated various a secretary in a is from the acts of an inner personal relationship with a household and i'm not completely up to date on all the scientific literature as far as can is concerned i know that there closely believes that the defendant in this case meets the criteria of being a battered woman and i will i would note that as of this juncture the state did not argue and i suppose that is something that could also be litigated in a third stage whether or not there is a sufficient reliable foundation for a doctor counsel's opinions but again that's something that would have to be fleshed out at the third stage of course at the second stage of the p beings all of the allegations in the petition and in the attash materials are to be taken as true except for those that are refuted by the record and of course at this juncture we don't have any contrary to expert testimony if you understand the nature of better woman syndrome i mean battered woman syndrome is used to explain why a woman would kill her abuser in a non confrontational situation reason testimony like that is so important is because a layperson ranger may not necessarily understand the dynamics of an abusive relationship like that why i have used my feel helpless in that situation like they can't escape they can't change the situation i imagine there were jurors who felt the exact same way well you have two bullets in the back of the head that seems like and there was no evidence in the victim's arm s the defendant did not report this to the police she did not report it to her family she may very disorganized ineffectual attempts at concealing the homicide so i there's a is that emphasizes that that shows why testimony like this is so important because that those are exactly the kinds of things that a battered woman would do they would  victim and you have two shots in the back of the head you have all those things i mentioned before about the defendant not reporting the shooting not telling her family making e burn by from the outside looking in she was a function normally well how on earth do you explain that to a jury without testimony from a mental health expert  again this is evidence that's available from an expert such as this that can explain her actions and i think the bottom line is with dr counsel or an expert like dr carson would be able to testify to is that many of the general topics one is why she would have had a reasonable apprehension of in their bodily harm getting non confrontational situation and her actions after the shooting you you reasonably apprehended him and him bodily harm in that situation and that's where battered woman syndrome comes into play i think one of the things that carter counsel outlines in her report is that when you grow up in this sort of dynamic when you're involved in this sort of relationship you develop a state of hyper arousal where you're always anticipating abuse and that plays into this apprehension of imminent bodily harm or even in a situation where you don't have someone in front of them threatening you or abusing you so i think the bottom line here is that to put it simply as i can to make a determination as to whether or not a trial counsel was in effect and that the defendant came up behind him put a gun to his head and shot him twice in the back of the back of the head execution style that's something that was an argument that made repeatedly in the closing argument after consulting with a it against the defendant's claim of self defense and for that reason i think it was vital to refute that theory to the extent council would have been able to move to the second claim in the ninety second c the defendant specifically obviously prior arrests made against the victim's purse use of the defendant's life makes her claim that her her father confronted her with a weapon more likely to be true which is why i think mean if we're already talking about the evidence this far never presented the trial was really concerning events that it did occur someone twenty five years ago thirty years ago so with a little bit less  and we don't even know what these would be in the day there's nothing in here about when this might have occurred and i understand your concerns as far as that goes best product of being in because our office represented the witnesses taylor and ask you this the defendant's daughter was approximately seven years old at the time the shooting occurred so obviously the things that she saw in her  testimony is probably the most important because she's the only one over that the defendant who could corroborate the fact that the victim in this case was physically abusive towards her mother and this is another reason this is important is because the prosecution belabored at trial the quality of the victim's relationship with his granddaughter with taylor by all reports by all accounts they had a very good relationship and she would have been able to corroborate the fact that her grandmother had physically abused her mom in her presence now given that she was seven years old at the time that this took place i believe the coroner jury would indulge her if she were not able to give her size times dates things of post conviction to put forward sufficient evidence and facts in those affidavits to stain and meet his burden the difference between a second and third stage is this actually is the exact same standard prior to the shooting and then it happened about five to six times and her speaking with the mental health expert she's claiming that the abuse began five to six months after the mother as opposing counsel says you must she told the ex mental health expert that he began to physically abuse her five months after the wife died physical abuse in terms of not travel council one with a strategy that was consistent with the facts of the case and the facts that were presented at trial he used the fact that she testified at trial that only occurred five to six she told you about the time it happened and you know why it happened around the time when he was pissed at the world about taxes she didn't stretch it she didn't embellish and that is again i indicator of some trial strategy in terms of using the facts that he had to make a significant self defense claim multiple witnesses from that that the prosecution brought forward that the victim had needed their abuse in a violent demeanor and so therefore given that nature when the missing there was not relevant to whether or not a real person would reason believe that he feared him in a harm and that point if someone point came in and pointed a gun at you and reasonable person her they had a struggle and then he she shot him and he was turned around and come back up self defense in terms of a reason to believe of some exactly i mean there is it it's more than just trying to make the body go away it's actively warning the investigation her sister testified that she didn't even want to go to the police and so  but taking those facts true as presented you also this court looks at what the record was before and how that and what the facts were that were presented at trial there is something significant inconsistency is that in your honor pointed out was discussed as a possibility taking the fact that battered women's syndrome is not has never been seen in cases of father child syndrome it's not unreasonable for you to decide not to put th is sufficient and we're looking at the reasonableness of the consuls of a strategy and just because you know on appeal or even in hindsight they might have taken a different tactic to show self defense well that's not deficient performance that's just a differen better to the purpose of raising a battered woman syndrome is to support a claim of self defense and one thing i want to address as sort of the last thing counsel was speaking to was well the defendant her version of events was there was a confrontation that may be true but it was incumbent upon trial counsel to recognize the state's evidence and have a plan to address it knowing that the victim had been shot twice in the back of the head and the defendant didn't report the shooting it was incumbent upon him to investigate this kind of evidence to see if there could be an explanation if the jury were to accept the prosecution's theory as to how the shooting occurred west wall showing that it's never been applied to this situation but how can you know we don't actually say you didn't find it very annoying but i spoke to an expert who said it doesn't apply in the situation so in council never spoke with him again if yes the abuse that she is reporting would lead a lie to a lot of the same behavioral psychological ways of thinking patterns of behavior that are consistent with better mood syndrome even though you might not label it a battered woman syndrome you might label it just abuse with post traumatic stress disorder or something along those lines but again council can be a strategic system without actually picking up the phone and calling and consulting with an the abuse that she just writes in her report both regard to the circumstances of the abuse and the time frame all match up with what was testified to a trial this comes down to one word in the report months instead of years  victim's wife passed away in one nine hundred ninety nine so again the abuse with as the defendant testified to a trial began in approximately two thousand and five so if they had said years instead of months it would have been correct and by the way the report does not necessarily attribute that statement it doesn't say christie told me that the abuse began five months after her mother died it just stays stated as a fact the abuse began five months after her mother passed away of course dr counsel reviewed a lot of material she including the trial transcript which leads me to believe that again it's a typographical error she she obviously would have had the credibility has been consistent with calling an expert in better woman syndrome simply because he had a strategy doesn't mean that failing to call a mental health expert consult with a mental health expert report her testimony of the things that she testified testified to support the conclusion that she was suffering from better moments and the two are not mutually exclusive