are remarkably simple the victim and mr hobbs had a running dispute over a failure to transfer some motor vehicle registration plates and mr hobbs fired in self defense and defense of his girlfriend got off six rounds for the other guy could could shoot back yes what about the two rounds of the shot while he was on the ground is that relevant know i mean i it may have been relevant for the jury but i don't think in terms of the prejudice here that it's significant but in any event one thing that the defense had going for it is the  happens yes so the competency of console is is and his strategy here is a significant factor it's the only issue before you our argument is that defense console assisted the state in convicting his own client by number one not objecting to just a plethora of testimony regarding  is past conduct involving drug dealing and firearms he portrayed the state was out to prepare to portray him as a gun toting drug dealer he moved in lemonade to exclude drug and gun testimony kidney that's true and then the court for whatever reason decides to let some of that come in it's in the record is somewhat perplexing one is that there's there was no  written motion filed to keep it out no case law provided to the judge the judge initially says well look no i'm not going to permit any testimony about guns or would have been miss gaston right they'd the prosecutor started asking questions that were clearly forbidden defense counsel objected and for some reason the trial judge overruled the objections and i think possibly the trial judge thought he'd let the prosecutor go down that road a little bit thinking that it had something to do with that drugs had something to do with the killing still on the ineffective assistance of point the defense lawyer objects repeatedly to this testimony while gaston's being questioned to the point where the court gives the lawyer a continuing objection and just says stop objecting and how after moving in limon a and then objecting until instructed no longer to object by the court i mean how how can any of that be the basis of ineffective assistance well because there's much more number one i think that defense console should have been armed with legal precedent our brief cites numerous ohio cases that say that this type of evidence is off limits so he should have litigated that whole issue better but i believe that his head is there any case that you could cite as to where our court or some of appeals found in effect of assistance because the person made the right motion but they didn't cite enough legal authority i mean that trail blazed i guess by the supreme court i think that henson case  case from the u s supreme court to two thousand and fourteen addresses that that the defense attorney did not research the law could not cite the judge the trial judge to the statute that was directly applicable so i think that that supports us but even if the prosecutor went over bounds during the direct examination and the judge made some erroneous rulings what happens next is that on cross examination defense counsel draws out much more testimony regarding drugs and guns than the prosecutor did and something that the  court of appeals the state court of appeals never mentions is the fact that it's some point the judge got alarmed and he calls the attorney the defense attorney and the prosecutor up to the bench and says and tells the defense attorney you better stop this you are tainting the hell out of the defendant so the judge was having second thoughts and then things just went completely out of control the prosecutor cross examine s mr hobbs as a girlfriend extensively about his drug activities and guns and then when mr hobbs takes the witness stand that is just a tour de force that we've quoted portions of the cross examination in the brief then and here the prosecutors just having a field day wow you you started dealing in drugs when you were seventeen still living with your parents and you started with marijuana you went up to cocaine and pills and you were making all this money and it's that had nothing whatsoever to do with this case because the dispute had nothing to do with drugs and everything to do with license plates i mean granted but this is this trial apparently was really boiled down to a credibility contest between  maybe gaston or whoever cheap prosecution witnesses were and could it have been i mean given that some drug and gun evidence had come in over the lawyers jackson but is it arguably trial strategy after that point when he decides you know what we're going to just kind of totally come clean with the jury my guy is going to be very transparent and and he's going to embrace the truth of everything and overall that will help his credibility on the more important question of you know whether the other guy pulled a weapon before my guy shot isn't couldn't a reasonable jur conclude along those lines no i really don't think so because it's one thing to say that on this particularly day mr a hobbs may have intended to sell drugs to one of the people at the house but it's another thing to just amplify it all in the end go back through this long history it's there's just no need for it and and i think this court's decision in white think they just spiraled and once they started down this path the judge was unwilling to reverse things and the defense console instead of standing his ground and same judge we got to you better declare a mistrial here because this is really gotten out of control he just goes goes with the flow and and throws this all out and then in closing argument all of a sudden he's backtracking saying hey this case is not about guns or drugs well if it's not about guns and drugs  why did you alyson all this testimony and help the prosecutor taint the client it just doesn't make any sense of the sense that the state court appeared to  erive or to observe or find is that by doing so it conveyed to the jury that my guy is just telling you the way it is and things are rough out there as people are doing drugs  and this kind of stuff that we're not trying to hide and concern that the jury might perceive that they're trying to hide so how do you establish candor you say you say things that otherwise you might want that's a way of going you can say well this was just doesn't make sense and i'm making a reasonable argument that this is not the way that the lawyer should go but the state court is saying well we think a reasonable lawyer might have done this and then we have to  review is still to have some purpose to be meaningful at some point to a federal court has to look at things and say hey have we reached the limits of deference to a state  message that white versus mechanics sends that you can look into the record and determine whether this idea of well it's reasonable is just a post hoc rationalization for what occurred  here the most important point i think i can make is that defense console thought it was a very bad idea for this type of evidence to come into the record and the motion and eliminate and then his initial objections and so this wasn't mr lamb may please the court i'm bill hemmer i represent the warden in this case i have two primary points that i'd like to make and then i would like to answer if i can the court's questions the first point i need to make is that this was always  case of self defense because it was always a case of self defense hobbs had to testify as he did as to his drug activities and carrying a concealed weapon the second point i need to make is if you look at that link the opening statement and the to the closing argument of defense counsel you see defense counsel in control of his case and the last thing the defense counsel said in his opening statement to the jury was that his contention was that this was a self defense case that was the defense choice it was the only choice in the case and it may some difficulties for the case of the case for the defense i'd like to discuss those difficulties and then try to answer the court's questions on your first point you know a lot of people carry their carry concealed weapons legally or not why why did he need as a matter of strategy here to wallow in his drug dealing history in order to explain to the jury why he had a pistol out and it doesn't matter why he's carrying or whether it's legal for purposes of the murder charge he's allowed to defend himself that's the defense view right but that's but he's carrying a concealed weapon because he's a drug dealer and he has to show well i'm i didn't go to the location for this dispute over a vehicle i went to this location carrying a concealed weapon first of all to sell drugs to makea mackie's house by the way not to get into a dispute with a vehicle and that's the first affirmative element of the for me defense and secondly because i'm a drug dealer i always carry drugs and money so i have to have a concealed weapon all the time because i'm a drug dealer so i didn't carry a concealed weapon with the intent of shooting the victim if there was any resistance over this dispute involving a vehicle and testifies to that and that has diminished with the if the three elements of the affirmative defense of self defense understand your point my last point though on the furtive d defense of self defense and this may answer one of the court's questions the duty to retreat on this is going to be difficult to start with the defense counsel argued this was a matter of who got off the first shot well a little bit of defen license perhaps there were two volleys of shots the coroner testified that the victim had six wounds some of them in a downward trajectory that suggested that maybe the victim was shocked when he was already down and  abrams testified that she heard two volleys of shots for him for that transcript five twenty three and five twenty four so that was always going to be a difficult argument but it was the best argument the defense counsel had where you have to volleys there's only evidence of one gun at the scene it doesn't suggest a second volley it was a ripoff to the first well you know it kind of robots that that affirmative defense of self defense but that's what you have if you're a defense counsel that's what you go  counsel's choice during i guess the cross examination of gaston to to really wallow in all this drug and g testimony i mean mr bally makes the point that you know to try to contain the damage and that it's sort of blows open during that cross and gets even worse during testimony what's your response to that  of all the trial judge's statement that that the evidence you thought might be tainted comes early in the case gaston's testimony the trial just maybe hasn't quite figured out where this case is going but after the continuing objection is made it's interesting the defense counsel the defense counsel has an interesting choice you can say oh great now i have an appellate issue that's going to be reviewed on an abuse of discretion standard or i still have my high risk high reward strategy of self defense that i told the jury but i was going to use in my opening statement which do i do and i suggested it's a very most likely most defense counsel will say i'm going to go with the high risk high reward strategy of self defense and not rely upon an appellate argument that's going to preview so we're going to be reviewed anyway based upon an abuse of discretion that brings me to my second point i'd like to point out the the defense counsel's opening statement a transfer of twenty two to thirty four is twelve pages and the last thing the defense counsel says in his opening statement to the jury is quote but the question will be whether or not brandon hobbs acted in self defense and that is our contention that's the last thing he says so he wants to emphasize that when you say something that's the last thing you emphasize it struck at number twenty two right well if you and i can performance if it's the first and last thing you say in the middle is mush but you want to be have the last thing to be good right so that's his last statement so we know we're going to have a self defense case that also telegraphed his punches to the prosecution so they can they know that harvey is going to have to testify to at least the first two elements of the affirmative defense of self defense and so they can start to prepare an outstanding cross examination of hobbs that's what hard to does testify to and then the closing argument is forty four record pages that record page seven seven zero to seven seven three the defense counsel specifically argues trouble seeing how many i mean i think i would be surprised if your opposing counsel doesn't agree that self defense is the issue the question is whether drugs help knowing about a history of drugs increases your credibility or decreases your credibility i submit that's the issue right submit that yes the state court did say that that the credibility issue of that of the two witnesses in each side is very important and the state court did correctly point out that sometimes you to establish credibility you have to in this case have your defendant testify candidly about everything in the case my other argument that is as i said in before is when you have these three elements of the affirmative defense of self defense this stuff is going to come in anyway when you have somebody who's going to a house to sell drugs and you have somebody who's a drug dealer who testifies is did he's carrying a concealed weapon because he's a drug dealer there's going to be some are going to be some problems with that anyway and so you may as well go with the high risk high reward strategy and let it all hang out what else can you do to try to limit you could and you could go if you're a poet issue you could yeah that would be another strategic choice catching exactly what your point is as to what sort of assumes the question is which is why we know that that helps your credibility it seems like going could go with with high risk high reward whatever you're calling a strategy of saying self defense and to argue self defense he wants somebody credible and they're less credible when they do drugs all the time w she's me if i may may come back to that the first element he has to show that he didn't go to the house that is the victim's cousin's house looking for the victim he went to the victim's how the victim's cousin's house looking to sell drugs to the cousin right so why do you have so drugs are going to cut those drugs are going to come in and then you get to the concealed weapon in the second and possibly the third element he's carrying a concealed weapon because he always carries a concealed weapon he isn't gunning for the victim and so he'd do those things have to do with self it's gunning for the victim or not going for the victim and still have self defense or not have cel self defense well that's that's their argument but that's not that's not the prosecution's view of the case just that the defense did argue that the gun that had d n a on the barrel that comes up a year later that's the defense arguing that's part of the defense argument but he has to explain all you understand the argument he needs to explain why he's there that one explanation the jury might think is he's mad about the license plate and goes there for this confrontation and this is what  happens the true explanation that appears in at least according to the defense is he goes there sell drugs and fortuitously this other guy shows up and you know this happens but even if that is true that he needs to put in front of the jury that he went to that resonance that day to sell drugs why does he have to continue on why discounts old reasonably make a decision to continue on and embellish that talking about when he's dealing drugs when he seventeen how many drugs how many guns do you have at home with cetera what does that add to the explanation the complete relatively benign explanation as to why he went to th residence that seems totally irrelevant to everything from what i said about a concealed weapon which may not be convincing but he does know that he's going to testify later hobbs has to testify in a self defense case and he's going to testify as to all of this and i can't imagine although possibly you could but it's very unlikely that a well prepared cross examination by the prosecution is not going to bring out all of that information anyway well i mean well but i guess he stops fighting the admission of all this testimony is that correct he does you know why stop fighting it i mean it's to irrelevant i think even to the defense we're at least i don't see the relevance even to the defense theory which i think you have a point about that and i understand that but i mean all of that it just goes way overboard and has nothing to do with why he went there that day i made my argument and if course i'm not convinced well i guess i mean i just may i just want to make sure i'm not missing your point i understand the testimony regarding that day i don't understand why he would not up stuff that happened years before guns at home and all that robotic having a concealed weapon does infer prior drug activity if you're carrying drugs and money around it suggests that you know what i mean that prior activities are relevant  s well but it goes to explain why you're carrying a concealed weapon if you have to constrain writer carrying a concealed weapon to meet the second that you know in the city i suppose i mean i you can you can say i started dealing drugs today and now i've got so many hundreds of dollars and so many because i only did it today to go in there to deal drugs maybe that's a good enough explanation why you had a weapon that day but ok well i think i understand your argument i just want to make sure i wasn't missing something i might i might add that the state court of appeals pointed out as your honor put out there that this was i think you both pointed out that this was a credibility issue and therefore there was in this state court of appeals here there was this additional reason for bringing all this in i like to conclude with a quick comment you know the double different defense was gaston and mackey where the prosecution gaston's testimony is very compelling if you want to know what this case is about read what gaston says it's coherent it goes a long way to explain the case  again pointed out that as opposed to the continuing objection the defense pursued a high risk high reward strategy coroners testimony is pretty damning in this case and two because of the wounds the direction of the wounds the number of the wounds the testimony prejudice to whatever is going to happen in this case when you have to volleys of shots correct abrams said that there were four shots and then a pause and then four more shots the evidence was from the corner that there were six wounds but it's the pause that's the damning part of the whole thing that indicates to me that the elements of firm a defense of self defense are not going to happen in this case for that reason practically alone and the coroner confirms then the combination of coroner well i disagree with the supposition that the subject of a drug deal that day was going to come into evidence my colleague mentions the opening statements the prosecutor never told the jury that we're going to present evidence that mr hobbs went there that day to do a drug deal and mr and defense console likewise never mention anything about drugs or guns and i think that this was in recognition of the court's preliminary ruling that this would be off limits so i don't think that's a fair supposition and i would again stress even though it's a adept at case that t white versus mechanic addresses the very same type of scenario albeit in the context of a sex case the death and what is your best case from the u s supreme court factually closest factually case that you would say that's the precedent that should have been formed the the state court of appeals i would say well obviously strickland attorney must write perform a reasonable goal in factual investigation and inten centers on the legal part of it and i think that's where defense counsel just want to stray i don't think he was sure of himself  how strong his argument was that this type of evidence should be excluded and that's that's why he's kind of lay down and let let things go and went with the strategy just let it all in it is this is just not a a reasonable strategy in light of the strong case law in ohio for closing the prosecution from using all the six trainee us other acts testimony to dirty up a defendant and convict them in a case w credibility is the issue they write thank you very much mr kelly thank you both for your arguments and mr belly we want to thank you in particular for your representation here under the criminal justice act you have done example in your brief and hear an argument as you usually do so we thank you may call the next case