for stipulating to the admission of three recordings of the state witnesses matthew price johnny price and stated that by doing so he realized that he was opening the door to admitting entire statements and when it came time to admit the first recording defense counsel said whole lot of merit here is the whole thing have to come in and the state said well yes under the completeness doctrine the jury has to see all of it and defense counsel basically just say we asked and said well ok as long as i'm given an opportunity to rebut not sure what that means but that's what he said so to reach this issue i'm direct appeal all the public court had to do was answer one question does the defendant's clane depend on any matters outside the record and if it does you can't address it and if it doesn't then you can a majority ruled that they couldn't reach this issue because the fence counsel did not state on the record why he was speculating they were going to get into a guessing game and because the record why you are stipulating and two there is no possible explanation that would justify an attorney a green so the admission of these recordings how could it ever be trial strategy to admit unfairly prejudicial statements against your own client in this case for the purported reason of impeachment and then not even needing those recordings to impeach not even using those recordings to impeach because that's what happened in this case in the only way you're not asking in this case for that or rule that every case that brings up in  right right if that if their evidence was reliable and if it was clear and unimpeachable then of course it would but matthew was sitting there completely intoxicated and drugged up contemplating going to prison in a couple of days contemplating losing his girlfriend or ne to somebody else while he's in prison and he in his haze of drug and alcohol condition his anger just cut renee and then realize there's going to be serious consequences for that he cut himself it sounds absolutely crazy but once so that that he has blood on him droplets of blood is consistent with his defense that he did not do that so that really doesn't prove that so convincingly that we would that the state could reasonably argue that the evidence is overwhelming in this case i think you're you're indicating you're relying on counsel statement that he thought he had collected and he opened up the matter and everything had to come in and that is one of those unusual cases where it doesn't really even matter what defense counsel said if he said nothing we've been the same position because no reasonable would ever admit unfairly prejudicial evidence against his own client for no reason because he didn't understand the rules of evidence so that really matter what he would say there is no reasonable trial strategy in doing so whatever he says doesn't really matter but in fact he did say something and not what he did say was he showed us he didn't know basically were counsel saying is i'm going to allow in evidence that is going to deny the defendant a fair trial because i want to teach some of the witnesses and he ended up only really using the recordings himself as a criminal like who cares the jury already knew is a criminal and talked about going to prison going to jail numerous witnesses came in and testified about matthew holding nice to people's throats pointing guns of people threatening to kill people who cares about that the only thing he really used to impeach was he has john p s the matthew did you hear johnny snoring right before the step and he said i don't remember saying that it's tell the police don't remember so we played a little snippet about the story so that was good so basically he let in three entire recordings just so we could ask matthew did you hear john story that's what it really boils down to when all the other impeachment made basically the witnesses said yeah i remember saying we didn't even need the recording they were so you're right if the evidence in a case is overwhelming against the fan then an ineffective assistance of counsel is going to fail so we have to really talk about the evidence to solve like i just said that the argument that the fence counsel made in closing argument sounds pretty fantastic well it is it still you look at the behavior matthew price and then their crazy scenario becomes reasonable exley could have happened in this case because of back his conduct and his character shows that yes there is a he thought about killing himself numerous times while several times before this happened over the thought of losing renee to another man so there we have matthew completely drugged up totally intoxicated just sitting there thinking about going to prison in a couple of days losing renee to somebody while he's in prison and so let's look at let's just take renee first who would cut renee is character is no better he says well  on the phone and the sites call the police that's totally weird for her so what does that say about jack johnny i mean that they kind of conduct is not consistent with what he testified so you and they have motives themselves johnny had a motive that night to hurt them because renee and the smacking guy stole his stole his drugs and he was upset about it songs are here and we brief that and argue that i think that that since this court's going to be having the make a determination i'm part of the issue anyway and maybe but the reason that we don't allow this evidence in prior consistent statements and bad acts evidence is because it produces unfair trials with results that we can't lie we that's exactly why we keep them out and here they came it this was a close case we how often do you see a case where the jury  the judge saying this we are at a deadlock here with no end in sight that's because this was a close case the evidence if you took all that evidence out you basically would be taking away the state's closing argument the strongest part of their closing argument because without this evidence very is no evidence that defendant had a violent history there's no history of violence for the defendant only because these statements came in that were not reliable to begin with and totally inadmissible that's how they were able to argue that and what they haven't showed is that the fed didn't have this history of violence so if you remove all of that evidence they came on him in half of the half of the i mean if they argue in closing that defendant has a history of violence and then you look at another part of their argument where they said the prosecution said we don't know why defendant did this there is no motive here for but we don't have to prove more she take those two arguments he's got a history of violence he's got no motive what does it leave the jury when you put those that's propensity that's why we don't allow that type of evidence and that's propensity that's a propensity argument so without all of this evidence coming in first they don't get repeatedly told about this incident which influence jury was hung so to say that this evidence didn't play any role and that the evidence was overwhelming is just totally inconsistent with everything that happened  me up and matthew said you have to go through me well they interviewed renee they wanted you to interview johnny first when he said that so when matthew came in the police asked matthew was there a problem with johnny and defendant that night he said no and then renee comes only who was there a problem with johnny matthew that night no so i'll finish up here  so this entire claim of why all this happened was totally contradicted by the other two witnesses who didn't know the same story so to say that this evidence is overwhelming morning your honour's may please the court assistant attorney general daniel doing for the people we agree that this case can and should be resolved on direct appeal but that's because the record is sufficient to show that  defendant did not suffer prejudice and that his counsel performed adequately that's both because the state's case against the defendant even setting aside the now challenge statements was so overwhelming that there's no reasonable probability of a different i'm at the jury not for the states but also because the statements themselves were on balance favorable to the defense at trial and therefore not prejudicial and stipulated to as part of a reasonable trial strategy so we differ therefore asked that this court affirm on the merits and to address the merits of an in effect in this claim is this court has repeatedly right and ised such a claim can be rejected on the prejudice from the law and we think that's an appropriate place to start and we think this court's baseline for the prejudice analysis as counsel discussed is to look at what the state's case against the defendant would look like if the statements were out of the picture entirely and that it's a pretty inculpatory picture of the defendant so we can start with the forensic evidence when the defendant was arrested he was speckled in the victim's blood literally had to tell he had the victim's blood all over when he was taken in to speak to the police and asked why he had blood all over him his first response was i don't when pressed on that he said that the blood was his own and the forensic evidence showed that that was a lie to the police when asked what happened that night he first said nothing happened when pressed on that he concocted a story that he later disavowed on the stand about his local rivals the joneses bursting into the house with guns to try to attack them that was also a lie to the police so even setting aside the eye witnesses what we have is forensic evidence showing that the defendant has blood on them and defendant lying about it to the police and that begins to paint an extremely inculpatory picture against the defendant and you add to that that everyone in the room that night has something to say wife on the stand that inculpate the defendant even further johnnie says i watched the defendant cut matthew's throat and i watched the the defendant cut renee's throat matthew says i felt the defendant cut my throat then i watched him cut renee's through renee says i didn't see who did it to me she was either sleep or incapacitated but she corroborate d the positioning she puts the defendant behind the love seat which is where the attacks took place moments before the attacks and she says after the attacks the defendant urged her not to call nine one one and speaking of the nine one one call there's  no dispute that the nine one one call itself was admissible and matthew's portion of it was admissible as substantive evidence which means that when the emergency operator asked matthew who did this to him and he says black each that was also part of the state's case that is an overwhelming picture of defendant's guilt and the jury would have been left to balance that against defendants alternative theories that matthew did this to himself or that johnnie did it but those suffer from fatal flaws totally independent of the prior recordings not least of which is that they all turn on the defendant's account that he innocently emerged from the bathroom to find that the attacks were already completed by the time he was out that had several problems one of which is that obviously he lied to the police beforehand so it was inconsistent with his first accounts of the police when he was first picked up as you've been innocently sitting in the bathroom he might have told them but also because he acknowledged he was about ten feet away from the  fracas when he was in the bathroom but said he didn't hear anything he didn't hear matthew screaming didn't hear in a screaming didn't hear the couch be moved so to to believe that matthew and johnny had anything to do with the attacks we would have to believe defendant's account that he was in the bathroom at the time and that was not really and there are also problems with the theory the theory that there are also evidentiary problems with these theories including the inherent problem in probability of matthew doing to this to himself the lack of forensic evidence we believe that there is one objection counsel could have made that might have been sustained and that was two in a statement that that his mother told me that he gets violent sometimes when he's the rest of so and i'll return to that in a moment but the rest of it we believe in terms of whether their prior consistent statements when you actually drill down to the details of the statements themselves they're actually prior inconsistent statements because whatever broad consistency is about defendant was there or we were all in the room the  details of how the attack transpired were materially inconsistent with the life testimonies we don't think that was a fact all you the only other acceptances that alcohol statement and we don't think that that is prejudicial so when you look at a case like  harris for instance this court has explained that that other accidents is not going to be prejudicial where it's isolated and cryptic and where the balance of the state's case against the defendant is overwhelming and we think that that accurately describes what happened in this case all three of these record of statements came in as substantive evidence correct as part of the state's case correct your honor so they were not impeached they're not introduced as as impeachment they were into introduced into to what what the state witnesses on the stand what was the purpose of this subset of evidence and it here so they were they were introduced by stipulation of the parties and and i think sort of a tick tock of what happened for the introduction of the evidence will help explain the prosecutor comes on and says i think we have a stipulation as to john's statement so the prosecution knows before they try to introduce the evidence that defense counsel is going to agree to it suggesting on the record that defense counsel had previously great defense counsel then explains we were going to open the door with impeachment against suggesting that the fence counsel wanted to use it for impeachment but prefers the court says no that's going to be admit one of six requires that the can now requires that the completeness doctrine requires the introduction of the rest of the statement contemporaneously and i think the parties agreed that rather than defense counsel introducing the  by the state and you're saying the state was introducing it is inconsistent statements defense counsel would have introduced it substantively as inconsistent statements so i'm asking why the status of this this is the  and videotapes as substantive evidence in the state's case for what purpose their purpose is to introduce those portions of the statement that the defense counsel wasn't going to introduce and they are going to introduce the entire thing they did your honor what w have happened so supposing there wasn't the stipulation with the stated ok different my apologies supposing there wasn't the stipulation defense counsel would have introduced most of the tapes as prior inconsistent in their kids in their to consider it substantively under ada one if it's inconsistent accurately recorded and made with personal not which if those three conditions are satisfied which they were here defendant would have been able to introduce it substantively so the counsel both defense counsel and the prosecutor for entering into stipulations that were timesaving that allowed this case to progress forward it was about almost a week long case so we we believe that these these pieces in the record on  pages thirty three and thirty four show that the parties have discussed beforehand how they want to deal with this evidence defendant explains that he want to use it for impeachment and he actually cites the will it a one evidence it's transcribed as him saying it a one b perhaps he made of these statements in cross examination and in his closing arguments is enough to show that defense counsel wanted broad swaths of these statements to come in for his case in chief and they simply agreed to to enter at all and at the same time in the state's case and when we look at the way the record plays out we see that these statements were actually materially inconsistent in key respects from the witnesses live test of so defense counsel's argument for why they constitute consistent statements is essentially a repeated details but that obscures the details themselves which differ from the live testimony and key points so for johnny statement for instance johnny says on the stand i watched the defendant do it to matthew i watched the defendant do it to rene but in his statement he says i never saw the defendant cut renee's throat and he changes his story about whether he saw defendant matthews throw first he says i heard matthew shout that caused me to look up and the cutting was already complete by that point then he changes his story and it becomes i looked up partly through the cutting these so when we say that details were repeated that's a critical distinction between the life testimony which is the the night which obviously was not the attempted murder weapon in the live testimony there's testimony that the defendant was playing with a knife these are a sampling of the inconsistency and johnny statement matthew statement also contains inconsistency is we think the most important inconsistency is the one by omission where matthew said on the stand defendant pulled me aside moments before the attack to say that he had a hit on renee as as retribution for a prior incident and matthew made no mention of that in his recorded statement and defense counsel i think affectively use that statement to great effect in cross examination and in closing argument to say that maybe matthew was making up the motive evidence on the stand that that makes this statement in its entirety favorable to the defense there are other inconsistency is that matthew makes about how he reacted to being attacked on the stand he says he ducked and spine and that's how he saw defendant got renee in the recorded statement he says he jumped up right away so these are the sorts of inconsistency is that if you actually drill down to the content of the statements you can see that they are favorable to the defense and that defendant would have been able to admit substantively under will it on one d and the state would have been able because counsel defense counsel is using so much of these statements would have been able to get in the balance under the complete stop so we don't think that there is there prejudice especially when you consider the interplay between the balance of the state's evidence and the statements themselves without without the statements defendant is left with all the eyewitnesses saying that the defendant did it the forensic evidence showing that he's covered in their blood and defendant denying it on the account and in his accounts of the police and what these statements do is allow defense counsel to sort of muddy up the eyewitness statements as even appellate counsel does here  he uses johnny's version of the events johnny's motive theory that he provides in the events to say that john wasn't right so if you take out the statements in which johnny tells detective blag that this attack took place because matthew interposed himself in a dispute between defendant and johnny that evidence is out altogether and defense counsel at trial and even here on appeal can't say well johnny isn't credible because he made up a motive here that's exactly what counsel is trying to do with this type of evidence at trial to say look johnnie having consistencies between his trial testimony he also comes up with this cockney theory in his prior statement maybe you can't believe  so ultimately what are described now is prior consistent statements were actually prior inconsistent statements would have been admissible substantively for the defense and therefore not prejudicial to this case he also raises and other acts challenge to some of these statements most of what he describes as other acts can be rejected out of hand either as not in admissible evidence under rule for for or is not prejudicial to the case things like whether the defendant wind to have sex with a woman named lizzy whether he had court the following day even the dissent below acknowledges that that wasn't prejudicial to defend its case or that defense counsel wouldn't have had a successful objection to those he said that means as we've discussed perhaps there was a meritorious objection to the to the alcohol have evidence however what defendant characterizes as the prosecutor well referencing this evidence and closing argument really isn't he cites to page i believe it's twelve forty eight in closing argument and in context what the prosecutor is saying is that defendant matthew and renee are all violent and unlikable people and then he says but i submit to you that whether they are likable or not is not at issue in this case so that's that's not a reference to the ten seconds of renee's statement and which she makes this alcohol violence like there's no reference to alcohol and violence there counsel does the prosecutor does say at one point that alcohol and anger are a bad mix but again that's not a reference to the sort of propensity argument that that appellate counsel now says that the prosecution was making and in any event the reference was isolated and cryptic like the harris case renee immediately caviar by saying i've interacted with defending a lot but i've never seen him get violent when he's drunk and it wasn't referenced again so ultimately we don't think that this single remark the ten seconds of recording introduced on the second day of the six day trial was enough to swing the balance in this case where there was so much other evidence against the defendant how should we deal with a note from the jury that they're hung the judge giving a print struction three more hours of deliberation to get the we don't think that that's evidence that this case is actually mostly balance and i think the thing to think about is that the jury are lay people and so when they say that they're wrong but then asked to continue deliberating the next day what they're actually trying to the next there that night you know they asked to come back the next day they say they say we are hung with no end in sight can we please come back tomorrow to continue what is the tell us that the judge says continue deliberating tonight but so they still are three more hours into the night they do so but but the point being when they send that note what they're saying is we're tired and we want to go home they're not saying it's impossible for us to the side this case and you can tell because they asked to come back the following day so when the judge has ordered them to continue deliberating and it takes them another three hours for a total of we're not certain from the record but it looks like six or seven hours corresponding to a nearly week long trial we don't think that that's evidence that the jury was deadlocked we think that that's evidence that the jury was tired and couldn't resolve it also came immediately after the jury requested and then was played the nine one one call was ultimately that the jury couldn't resolve whatever outstanding issues they had from listening to the nine one one call wanting to go home and the court ordered them to plow on and they finished within a few so ultimately we think these statements were present prejudicial counsel stipulate to them as part of a reasonable trial strategy that brings this case sort of pretty close to this court's graham opinion in which the state's star witness had a prior statement on the stand the star witness as i watch the defendant shoot the victims but in a previous statement that defense counsel listed it the witness sad i watched the defendant shoot into a room in a vacuum that might seem like unfavorable evidence but when you actually drill down to the details and look at the context of the case it's actually an inconsistent statement that shooting into a room is less inculpatory towards the defendant than shooting the vick watching him shoot the victims and that's exactly what we're looking so we think that this case can resolved on this record in favor of the state and i want to briefly touch on why we think that's the procedurally course so we all agree about the general sort of architecture of how we consider exists and just doesn't apply in this case that in certain circumstances the court can decide in its discretion that some cases are better held over for post conviction review if they would benefit from for the record expansion and the parties agree that there's no more record expansion needed here we think that the record is littered with evidence that defense counsel want to use most of these statements as impeachment that's why he cites them at least five times in closing argument he says that johnnie changed his story two or three times in the recording in his closing argument defense counsel is using these statements all throughout cross examination all throughout closing arguments and so we think that the record is sufficient to show that defense counsel wanted these statements and therefore performed story so that if you didn't have the students in the defense would have had nothing to respond to well they would have hit nothing but the good of this that they wanted and they everything that was bad about this case came in through the state i don't really understand how why a defense counsel would want prior consistent statements by  the state has said well they were really it's just that they were totally it's just you know the officers asking johnny will show me how it all happened and he's going through the you know this is how with the knife why this is how the arms were all consistent to break down their credibility makes no sense so you're you don't believe that those statements were admissible under it one the one to see as as accept that is the truth even though it's not the truth they just if you repeat something it has an effect on the jury and that's what we keep now why would counsel wanna keep putting those in and why would coun want all this coat the come in the substance of evidence that apparently the state says that's a plan really that would be a plan that's a mistake you know they say well you know the jury believes a jury open the only reason why they can come to their conclusion that he's bad and violent but for the allegations by the price of family it's because of those prior to the bad the chance to bring in something to show that that's been taken out of context so if you have somebody says that you bring a party brings in the statement and statement says i never saw the defendant drive through a red light in my  and that's it well the other party can say you know that's not fair we need to put in the rest of what he said right after that i have never seen a defendant the defendant drive through a red light my entire life except for the one he's charged with in this case yeah i saw that really clearly that's what is force when somebody tries to say take something out of context it's just a fairness i don't see how that could apply to any of this stuff  fingers at the defendant so he did a great job you know counsel did a great job of pitching and then he talks about great job and impeaching johnny on his claim that the fan wanted to beat him up because re because the admission of the other stuff was so we use all actively by counsel to impeach these witnesses that unbalanced than you know really didn't ma that johnny was standing behind him right before he had the child he was saying you know it could have been john he you know he was sitting in the front in front of me so i would defend it was you so not only do we have the fence counsel this is not are you a normal run of the mill case this case was way i just totally totally impossible so to look at this case and see how any of the procedures the rules of procedures were followed it was like a free for all and because defense counsel did not understand how to properly presented fence and protect his client from all told her that she was laying down with her throat cut and she looked up and she saw me are you cutting his own throat how often you see that happen in a case sometimes when you have really close cases strange things can happen and this is one of those cases the iris was very close somebody injury thought it was close because they were hung with no and insight and then you have these characters like matthew price violent malicious person who by all accounts was holding renee a prisoner in that shows that you know she just called them boyfriend girlfriend just does not reflect what the evidence shows it shows that she was afraid of him and that's what the text of what's said and there's no further questions we've asked that the sport find that this is real bull and because defense counsel stated on the record that the reason why he did there's no guessing here and because there is no reach will be taken under advisement us agenda number three