it please the court counsel my name my name is katherine hart from the office of the state a public defender and i represent the appellate people the central question presented by this case is did the defendant's trial attorney commit during keep in shape for trial and if there were errors with the results of trial have been different but for trial counsel the answers to both of these questions is yes during the course of the trial the following evidence was on the night in question keith and was driving a maroon two thousand and five ford taurus that had been reported stolen when he was in the taco bell drive thru in quincy the police approached the car and at that time a passenger jumped out of the back of the car it was keith and shapers brother and ran away when the arresting officer approached the car he heard the front seat passenger say what's going on and keep in shape for the car stolen subsequently keven was placed in the police car and he in an unsolicited statement  the car was unlocked and keys ran it and i was only doing at trial keven testified that he did not know the car was stolen intell his brother drug jumped out of the car and that he did not steal it on feb seventeenth two thousand and eleven the jury took place in half a day at eight thirty in the morning the jury selection process started and by twelve thirty the entire process was over and the jury was sent back to deliver at  three o five a jury no came out from the jury that asked is there any distinction to be made concerning the amount of time that has lapsed from the time knowledge was gained example seconds minutes hours days that are at four thirty the jury returned a verdict of guilt the ineffective assistance of counsel claims or analyzed under strickland vs washington's test which asks were counsel's actions outside the range of professionally competent assistance and if so whether those actions prejudiced the trial counsel in this case made three errors the first error was to concede that criminal and the third error was to concede that the jury instruction on voluntary possession was not warranted following the jury's quacks question during jury deliberation  fact that he indicated he was joyriding and the fact that he told his passenger that the car was stolen when she was going on can you really show prejudice and you didn't invent a pretty strong case for the state even if those are errors have not occurred or her i think at this trial actually that there's sufficient evidence to show that it was closely balanced and this jury struggled with coming back with a verdict that the eight thirty they started picking a jury and by twelve thirty the entire trial was done and before twelve thirty twelve thirty is when the jury went back for deliverance and it still took them four hours and halfway through they had a question as to whether how long he knew would it would it matter how long he knew the car was stolen which indicated that they believed his testimony or at least might have believed his testimony that he didn't know the car was stolen until around be the trial or the state actually was the one who who mentioned this instruction and the trial lawyer should have argued that yes this there we should respond to the jury with this additional friends point of view it's just as well if the judge doesn't answer just as well the judge provides no clarification at all maybe the juror or the jurors who are hung up are not yet heard decide a guilty verdict what is in their possible i believe in this case actually that the jury question indicated that the jury had some cues and as to how long did he have to know let's assume you're right why would the defense attorney want to have the matter clarified and help the jury get rid of the because in this case if the jury believed keep in shape for that he didn't know that the car was stolen intil his brother jumped out of the car then the length of time that he knew that the car was stolen and had possession of it was relevant oh so this would in answer to the question of been helpful to get a not guilty verdict why do you think the defense attorneys think that's going to be likely given the evidence presented in this case well i don't get a hung jury i don't agree that this was an overwhelming evidence case i believe that the  car we don't know that's not in evidence at trial but we do know that he became the officer that those are things that his brother told me but he does not have an obligation to offer that goes to the first error which has that this case should have had a criminal trespass and there was sufficient evidence at trial even if even if there was conflicting and you can still give that lesser included instruction and so on top of which we know that the attorney misunderstood that he also thought that criminal trespass was not warranted and so he would have had no reason to discuss giving a lesser included instruction in this earlier about the prejudice prong of it but really where i'd like you to hone in on right now is the error part of it the trial attorneys performance at trial what do we know what is are or is the trial court bond to accept the claim of the defendant post or a motion that my lawyer never discussed a lesser included instruction with or operate and so there's an oar there so in this case it would be operating he was driving the view well the trial court found in its written order that this very well could have been a sound defen tactic to not request a lesser included instruction and go with the all or nothing approach a lesser included instruction would have allowed the jury to come back with a guilty verdict for something less than what the  defendant was mentally convicted of might have done that in this case but who's to say that it was not a legitimate defense tactic to forego a lesser included instruction here and go with the all or nothing approach counting on the jury not being able to convict the defense or the defendant on the evidence presented in this case where a trial attorney did not believe that criminal trespass the criminal tr chose to remain and it for a limited hearing on this issue i think that that would be a viable solution as well but i do believe on the facts of this case because trial counsel clearly did not think that the instruction was warranted he he would have had no reason and as keep in shape or alleges in his motion did not discuss the giving a lesser included his second error which was to corrections and that he had to satisfactorily been discharged from probation both of those things are valid facts which should not have come in period so that certainly cumulatively these errors had a huge impact in this trial because this was a case of who do you believe do you believe the defendant when he testifies and says i didn't know the car was stolen intil my brother jumped the car ran away  said the car was stolen it could be looked at different ways that's true your honor this again because this was an incredibly short trial the deliberations really were longer than the trial and so the jury was the impeachment of your client with his prior felonies it was in the state that brought up the size of the firms that is a legitimate trial strategy to us i'm not sure i'm pronouncing that correctly actually even talks about that in that case where defense had the fact that spence counsel brought it out on direct instead of on cross is not the problem  if the defense defense counsel had simply brought out the convictions and not the sentences that would have been ok given that the trial court had already decided that he went to allow the state to impeach him with his prior convictions the issue is that he did not testified at some weighing both the record and cross examination about that statement and never said by the way my brother told me about that he was not allowed to testify as to what his brother told him the state objected so when he's arrested the police officer finds on his person a bottle or a bottle of cologne that the owner of the car identified as his and that had been in the glove box so the jury  presented with evidence that the defendant had on his person a bottle of cologne from the glove box why he took this bottle of cologne from the owner of the vehicles have right here on i see my time is out would you like your response we don't know what the circumstance the clown were we don't know if his brother gave him the cologne and said hey i know you like cologne or we don't know there's no explanation what we do know is that this jury struggle to substantiate the claim of ineffectiveness that he presented to the trial court and that was limited to one issue that was whether or not farmer consulted with the defendant about the decision not to  tender an instruction for criminal trespass and whether that was error so he's had a bite of the apple at that issue so this court can the record  is for what he presented which was nothing he simply set forth the allegations in the motion and then he didn't substantiate it he had new counsel in and wasn't he had he had full rein to prove through farmers testimony or through the defendant's testimony that there wasn't consultation so medina states that the assumption from this record is that there was that consultation and that the defendant acquiesced to this decision because any time a lesser included is is given you're exposing your client to additional liability so you are outside of the record you have to substantiate it either with the affidavit or with the defendant's testimony you can't just rely upon the allegations in the motion itself was the poster of motion verified  the no not so i recall these are just allegations there are allegations and that's that's what it remained because he didn't bother to present any testimony or any affidavit resembles you've done this for a long time and you're a fine to say that the jury should know about the sentence or the trier of fact but as a practical matter a jury knows that you either get a community based sentence or your incarcerated well that's true and i think i suppose probation that was discharged unsuccessfully it sounds like it could be a probation revocation and prison sentence whatever that is it's almost like it's a third conviction because it would strongly suggest to the jury this engaged in more misconduct of some some nature to be deemed to have unsuccessfully completed his probation well it could have been a technical that question i can't answer certainly it's a jury should not have have learned about it but they were given the appropriate instructions so they knew this is only wasn't a credibility contest because the defendant provided so much of the information i'm telling telling the police officer first that i was just joyriding the keys were in the car the car with some locked that's inconsistent with his his later testimony that i didn't realize it was stolen until my brother took off running now how does he know that his brother taking off running that upon the approach of the police officer let me interrupt you before you get too far down the weight of the evidence path here and just sticking momentarily with what justice died when was talking about that being the assertion the credible could be based the defense attorney conducts so direct examination of defendant and doesn't bring out the prior convictions were sentences of that time for right the state the cross examines the defendant and the convictions  sentences don't come out on cross examination is that right yes ok and it's only upon redirect that the defendant's attorney brings out these sentences as that right yes he fronts the concerns so in terms of the conference that occurred with the court and whether or not sentences could be delved into and the prejudice prong struck blind it doesn't happen until redirect and if someone wishes to claim an effect assistance maybe the defense attorney was ineffective in bringing it up on redirect where you know redirect had even been engaged in neither the conviction nor of the sentence for either of the two felonies would have come out would it will that's not true the state was intent upon him and he wanted to reveal the convictions rather than have the state do that because he kept telling the jury when he was eliciting this from the defendant to be completely above board we want to tell them everything we need to know let's be upfront about your your past record and  that was made to garner points with the with the jury certainly using it was calculated that it was done on redirect as opposed to correct well perhaps he forgot on direct but in any event he knew the state was poised to impeach him and he didn't want that to occur because the court had given the green light after conducting the month montgomery test so he knew it was coming that part so so sure of that but we can speak with confidence about that what were the two prior conviction possession of methamphetamine precursors and burglary and the burglary he was sent to do you see and the methamphetamine he got probation now again had the defense position then judge none of this is sufficient probative you have the discretion to let in any of these prayer convictions  as appropriate and we're going to object to both but certainly if you're going to lead to many there's no need to let into as a trial judge and speaking so for my colleagues but i would be surprised the greed you're bringing up an instance of what could be ineffectiveness in a post conviction proceeding that hasn't been presented on direct and of course this court is confined to what the defen you about is criminal trespass the motor vehicle lesser included as i recall in your brief you argue that it does not know of using the charging instrument approach and i've always had difficulty with this determining whether there's a broad outline in the information but there is no indication in the information that he without authority knowingly entered and operated  possible that you can constructively possess a vehicle without entering so the information just set out the elements of possession of a stolen more motor vehicle and even if you did have the foundation in the charging instrument the second part of the tests he can't get past that is that the evidence would not rationally support him for criminal tr pass and an acquittal for unlawful or unlawful possession of a stolen motor vehicle because it shows that he's the one that stole it i mean the certainly the statement that how how he found the brief instance of using a vehicle where this guy had had it more than forty eight hours and there was no indication that he ever intended to return it to mr rudd and it was just for two it is that an officer happened to see the car in the drive through and he has rudd's cologne on his person i mean he rifle had to have rifled through the glove compartment were kept the cologne and if he truly thought that this vehicle belonged to his brother's girlfriend or her family it's unlikely that he would have done such a thing is there evidence that he possessed the vehicle for the forty eight hours well that's certainly an in ence that the jury can make if he's the one that stole the vehicle and there is a solid evidence foundation for that even if he's not actually using the vehicle he's still in constructive possession was there any evidence that the brother has a stroke at any point during that well when he was sitting in the car he's in cars constructive possession if he knows that and i understand the distinction you're making but was there any evidence  say during the defendant's testimony that the brother was driving the car at any point well that the brother drove the car to the defendant had just sold his car to a person he couldn't recall his name and then he found out his brother was looking for him and lucas the brother shows up at his friend's house in this vehicles the yes the brother is look this is driving the car the brother testify that the girlfriend tested no it was the testimony of three people at this trial the two state's witnesses rudd in the police officer and then the defend  earlier asked was hard about the question from the jury and the response speculating that from the point of view of the prince attorney a question from the jury indicate that someone essentially say to the court judge let's not say anything other than the standard you have all the instructions you're going to get that need please can you liberations a response you and i have seen a lot of  and time is not knowable it's that last part but it's troubling and i'm not so sure that that fits into a scenario why different scales would want that information if really the issue in this case was was knowledge it wasn't voluntary position and i have cited a case where it was very similar to this where somebody was possession of a box that contained pills that were ecstasy and the police had already obtained the box and put some sort of tracking device so they knew exactly when he opened the box and the court said that that was not the issue that time was not the issue it was whether or not he had knowing  possession and the same obtains in this case that if the jury really believed the defendant was unaware that the vehicle was stolen then they couldn't have found that he was  question clearly indicates that they had issues with when he learned the car was stolen whether whether we or you may think that that confusion not shouldn't so the length of time was important and this jury instruction worked in this case there were three errors that work and they had a huge impact they affected the defendants credibility as a  in a huge way and his testimony was the linchpin and it impacted the jury's understanding of the charges and what they needed to do to come back with a verdict whether the resulted in a situation where but for counsel's errors the result of this trial with this