ineffective assistance of counsel for the trial attorney to decide not to call the defendant to testify in his own behalf the other issue has to do with the correct standard to evaluate waivers where the defendant does not take the stand and later alleges that he believed that he was to take the stand and wanted to take the stand and understood that he would take the stand i'd like to address the question of ineffective assistance of coun the i'd like to stick just to the court than in any case that arises in the in this posture where we are arguing that the defendant didn't testify it was due to the attorney's decision and that the decision not to have him testify was ineffective but the court should look at three factors the relative strength of the prosecution case the defendant's credibility  the second way you have a phrased is a little more like the the defendant's fundamental right to testify which is in p and in these circumstances that that's addressed more in our argument juan we feel that sense this is a fundamental right that there's a different different level of scrutiny that should be applied yes is that helpful that's probably an understatement it's probably more up the decision not to testify is being defended by the state and i think they have a difficult case they have a difficult case whenever you have allegations of sexual abuse of a minor a jury is first the jury's first reaction will be to accept those allegations and convict the defendant regardless of any corroborating evidence and the absence of breeding evidence people generally feel that these allegations are just astonishing outside the realm of normal experience and couldn't be made and wouldn't be made unless they were true the defen attorney and dealing with this kind of case that starts out with a disadvantage he has to use every weapon that he can and usually he doesn't have very many because there's no there's not a lot of doing a good job but skips a beat and the patient dies you have to go back and look at whether this was this particular decision was competent in all the circumstances we know for instance that a lot of cases criminal absolute right to testify but that's the argument we're making to arguments that you need just stated argument seems to be a very difficult argument to make given how much time and attention was given to that subject that this wasn't a tactical decision by counsel in the course of trial which defendants have to live with all the time it wasn't arrived that lightly or quickly or it was in the snap judgment however doesn't make it correct it we've gone back over this mr harris would have made a good witness he was but how can we conclude that particularly under the standards for review you can conclude that because he did testify and there's a transcript of his testimony from the district court you can also look at the fact that he's a retired c h p officer and he doesn't carry baggage he has no criminal record he didn't give the police are questions about the evidentiary hearing how strong a request did he make harris make to his lawyer to tell him i want to testify well one one thing he did was he invited a friend to come to court to see him testify he thought he was going to testify when they put him on the stand apparently the lawyers were wondering well should we have this guy testify as far as mr harris was concerned he was practicing it's testimony that was the idea when he testified at the evidence you're hearing did he say he was surprised or he was surprised taken by surprise or because sometimes they'll stand up and question of whether the attorney's decision to keep him off the stand was competent that's a separate question that was examined separately the district court i thought get a good job of dividing the two issues go to the discovery or anything come of remember hearing or anything to give their lawyer reason to believe your client was under squeaky clean as he thought he was now he comes across a squeaky clean the girl said there was some dirty video in the house they never found that he's a retired c h p officer there's not nothing came to light that i know of and i know quite a bit about this case that it casts any other doubt on on his character other than what these two girls came up with it was just reading a transcript and other cases of child molestation cases foster daughter examination that's that's a strategic i'm not sure there is any true that he would have been happy were very easy to look back and say this is a terrible jury and i can recall that from the deposition but if i have a minute i'd like to get several points to answer questions that came up the prosecution or the attorney general had mr harris on cross they could have embarrassed them more hours or got hearing so that that opportunity did arise when he would when he went into this so well equipped which was run on at the time of the sentence he was talking about other witnesses that he wished they had put  on in his defense he wasn't he never got i think he was a little confused he didn't know what was an issue when he didn't talk about his own testimony as far as jury misconduct the jury pool that these