robbery that took place at a bar during the course of that robbery there was an off duty police officer who was a patron of that bar and he was shot by one of the robbers there were some  case but really the major problems from my perspective began during the opening statement defendant's lawyer at that point essentially put on the head of a prosecutor several points during his opening statement and gave the jury every reason in this case to convict his client he pointed out you know c n n jr yes  name and if you read the paper you can't miss it nowadays i guess so mr adam said you know first thing i'm almost the first words out of his mouth there is this isn't the best client that you could have he told the jury i'm not going to dispute the fact that my client's d n a is on a key piece of evidence of course later he did then make some effort to dispute that evidence  told the jury that his client had been selling drugs since he was twelve years old or so would be completely inadmissible in a trial like this he went into great detail about his client's gang involvement about the game culture that his client was raised in and multiple occasions during his opening statement and during the testimony he informed the jury or asked questions or didn't object at various stages to the fact that his client was in fact an excellent and its client was in prison when he was interviewed by the assistant state's attorney and gave a statement to compound the problems that mr adams statement the opening statement particular created in relation to his client and his client's essentially bad character that he presented to the jury was the fact that at the same time that he was denigrating his client he was taking one of the states he witnesses officer king who was the off duty officer who was shot in the bar and he was calling him a hero on more than one occasion so the same time he was postering the state's key witness he was gutting as client in front of the jury  think based on that the prejudice was very severe and the ineffective assistance that resulted from that from that opening statement and from his conduct at various points throughout the trial that in and of itself is enough reason to true i think that there are serious problems with each of those pieces of evidence some of which was recognized by the trial court as far as the statement that was made at the prison and i think it's very clear first of all that you know the prejudice it goes with the fact the jury was even led to believe or informed that the statement was taken at a prison was very damaging and you really can't get past that in my mind but that statement was not recorded in any way it was an assistant state's attorney in think there were problems with the statement i think the same problems existed with the identification which is made by officer king at trial there were some pretrial motions relating to that identification but what happened with the identification is that at the time of the crime officer king essentially told the investigating police officers that he didn't see who shot him it wasn't i saw the person but i can't identify and that was i did not see the person who shot then three or four years later when the a evidence at been processed they conducted a thorough array and officer king at that point was somehow miraculously able to make an identification and i think that you know the weight given to that  that he was in such pain and he was receiving morphine and other medication and treatment at the hospital obviously but i don't think that there was any suggestion that at the time that he felt like he was somehow not able to make an identification he firmly he said i did not see the murders and it wasn't you know there was no effort at that point or say twenty four hours later forty eight hours later two weeks later two months later there was no effort to go back and get a description of the person who was the shooter now that's particularly troubling in this case because this is a police officer who was shot this isn't a civilian who maybe you know is going to feel like well i don't want to bother the police i don't want to go down and try to connect with them and make an identification or give a description a couple weeks after the fact this is a victim whom self as a police officer and certainly had the ability in the know how of going and making a phone call talking to the officers who are investigating this case and providing them with a description of the facts the matter is that was not done i think the logical conclusion that should be drawn from that is the fact that he didn't have that information that is disposal he wasn't able to give a description because he what he told the police was actually me asking you move the switch or there is i would say some question of that his testimony on that issue was also different when he was first who were leaders spoke to the investigating officers he did not tell them that he had removed the sweatshirt of the ma not able to identify the shooter these witnesses were also not able to identify the shooter and that includes at the time of trial there was no one else that testified during the trial that was able to identify the s a serious problem with the d n a in the case from what i've been able to discern from the record and i don't claim to be a d n a expert from what i've been able to discern it appears that the d n a sample is really at issue in the case the one that had mr all bardos d n a on it was there's no dispute that it's consumed during testing mr adam after the jury was sworn made an objection to that evidence and said that you know it is the first that he had heard that it didn't consume i think the state's response to that which is that it was that he was informed that it was consumed during the testing in a previous discovery disclosure is in fact true  i can't give you any good reason as to why a mr adam when he was learned that the material had been consumed or destroyed in the testing didn't at that time file the pretrial motion i think it was probably frankly just another indication that he wasn't giving the cases full attention and i think when it comes up during the trial he actually says that if he when he's telling the judge if i just became aware of this and he also at that point says if i become aware that earlier if i do all of that earlier i would have filed pretrial motions i think that goes to the fact that he realized that there was a problem with the d n a i think the testimony is clear if you if you through it that the lab that was doing the testing did not receive the required permission from the state police before consuming the evidence now may have been something that you know would have been received  correct procedure in a case like this where the evidence is going to be consumed is that they get some approval at a time but as far as the due process issues with that evidence really the key piece of d n a evidence against mr all part of the real issue is that he never had a chance to test by the time that he isn't formed of the existence of the evidence he was basically told it's already been consumed thirteen of mr adamant wanted to at that point he could not have gone out and hired an  expert to either observe the testing that was done by the state police if there wasn't enough to do a back up test to confirm the results or to refute the results he may have been able to make a motion saying the destruction of the evidence prejudiced the first of all there's no indication that his client was going to testify he didn't promise that his client was going to testify and mr adams certainly doesn't have an issue with promising that his client is going to testify but the the real issue with what he says in his opening statement is that even if he his client had testified none of that or at least much of that evidence would not have been admissible there was no effort made to introduce it through cross examination or some other witness but even if  roboto testified i don't see how it would have been admissible that he's been selling drugs since he was twelve years old that he's been gang involved for a long period of time in fact this was the gang involvement goes i think it's i was somewhat surprised i don't know that i've ever seen it before but at one point during the opening statement when mr adams was talking about his client's going above and over and over and over the state's attorney actually objected to it and i've never known state's tourney to object to evidence that the defendant on trial is getting involved i can't tell you why that objection was made and it was overruled but i think that that indicates that even the state's attorney was worried about the road that he was going down because the evidence was clearly prejudicial twelve people are looking at you you're gonna say something you do but i think the absolute wrong thing to say and i don't think that there's any excuse to say my client is a terrible guy and let me tell you why start your case with that i think the only thing that a jury will do under those  in order to give us going to get out of jail free card i just seen it was worse well i don't i don't think there's any indication that that's what was happening in this case i think but you know in some of the cases that the state relies on you know there was some indication that the defendant was flip flopping on his decision of whether to testify or not testify in this case there's nothing in the record that indicates that mr alberto was ever intending to testify i mean there's i suppose some implication from the opening statement but maybe that there's no other way for that evidence to come in but i think that this case could certainly have been tried given the weaknesses that i discussed through cross examining the witnesses that existed was given the fact that there was a confession and given the fact there was d n a in the case that actually a very weak case and when it's a weak case given the circumstances of that evidence and the problems f third eleven zero five and in that case the conviction was affirmed and there was testimony that the defendant had initially decided not to testify and then they took a break and he decided that he did want to testify and ultimately he went back and decided that he did not want to testify so the result was the same but that was an issue that was raised in that case that was something that the state cited as a reason i guess to consider whether it's the defendant who's creating  a very difficult position to put a defendant in to really put anyone in but what the state is saying is you know if your lawyer makes a statement and you have been effective lawyer and you your sixth amendment rights are up health and to some extent maybe you're giving up your fifth amendment right now i know i just think that there's a real problem with trying to go down that road and saying you've got to choose somehow between that moment right in the sixth amendment right and that you know the specter of some possible misconduct by some wire or some defendant is a reason for this court to affirm that behavior and i just don't think that that's a good road for this court to go down they elevate well there are things that he could have said he was expecting his client testified he could sort of i mean if you just said my client's been convicted before and you're going to hear the you know you're going to hear from my client you're going to hear that he's a convicted felon and that's not an issue but he goes well beyond that and he goes into things like he's been selling drugs since he was twelve years old and let me tell you all about his gang involvement and let me discuss things that frankly are just not admissible that's the problem in the case if it was just a question of my client is going to testify this is what he's going to tell you and here's the road been admissible grounds that he's going to be impeached on that i'm going to front for you in my opening statement i want is no issue i want you to feel sorry for him because he really twelve years old was out on the street selling drugs and supporting his m i hear what you're saying but i just don't think that that's what happened here i mean when i read this record the only thing that it appears to me is that the the defense lawyer frankly just didn't give much thought and in the theory that he was going to present and perhaps the key thing that supports that conclusion or the reason why that's sticking in my head his this d n a evidence because in his opening statement he says i'm not going to contest the d there because there's there's this caucasian hair that's recovered which clearly doesn't come from my well there's also with us yeah i mean i don't know that of course i suppose that's true i don't know how the hair factors into that you know that was the best testimony for the rest testimony that there will i won't comment on that unless you're looking for one i think that's pretty rhetorical stains in this case both stains have the defendant's d n a there is a stain that was designated summer of zero one that's the larger stain of the two that particular stain the defendant's d n a is the major contributor and they say they do that by the amount of d n a that's available for testing in that case and the major contributor came back to be defendants the minor contributor came back to be unknown the second stain the smaller zero came back completely to the defendant let's remember the timing in this case the crime committed was committed two thousand and one so mark gets the d n a the  the testing is done and so mark asked for permission and in there is a dispute as to whether they got permission from the state police but again that's not a that that's a procedural problem it's not a it's not a legal problem  any event they say we need to consume this because we don't know how much there is on this and we're going to consume it so they consume the whole thing and they don't destroy the evidence the evidence was used in testing and that nylon and that cutting and the chemicals and everything else are put in a little test tube back to the only state police so this is not destroyed there's not some bad faith this is common practice on small samples on on stains on fiber objects when you can't tell us not like a little a swab or you know how much you've got you don't know how much you have in the stains and if it's a small stain they've got a they've got it consume the whole thing the point is the defendant is on both stains the only stain that council started to complain about in two thousand and seven was stain number two the consume stain even let's say he successfully getting that thrown out number one is still there the defendant's saliva is still on that mask that mask is found on the floor of that bar so that's strong circumstantial evidence that this defender was involved in the case no matter what you do with stain number two there is a line of cases that talks about evidence  destroyed and that can only be held against the state in certain circumstances basically now i would argue that has to be bad faith by the state clearly no evidence of bad faith in this case there would also have to be a request by the defense to say this well there was no defense in this case yet because it was two thousand and four the defendant wasn't arrested until later that year after the evidence is sent back to them by state police it's run in the codice program which is that master program that's got the d n a database defendants name is spat out the police get his name they put together a photo array to show it to officer king officer kings as that's the guy the defendant is then spoken to at the prison makes a confession and the defendant is charged with with this aggravated battery a firearm and armed robbery so at the time that the consumption not destruction of evidence takes place there clearly could have been no request by defense counsel for to save this evidence because there was no defense counsel nobody knew who and justice stevens in one of the cases they point out that you know that the press everybody had reason to to look at this evidence and to say this evidence the time because nobody knew who did this case so  it would have done the prosecution good to to destroy this evidence because they didn't know they were dealing with at the time so there's clearly no bad faith the other thing to remember is that this is this whether it was a rather disingenuous motion by defense counsel bring this up at the time he did it's after the jury's been selected it's a year after he's already signed a discovered receipt and that discovery that he received had the evidence from cellmark and said this this particular item was  the time of trial in two thousand and seven he never made that motion he didn't really want this stuff test that he wanted to make a motion to try and get you know throw a monkey wrench into the crowd was a nice try it had no basis and it was properly denied turning to the ineffective assistance of counsel claim under strickland we have to presume competence we don't presume incompetence and if there's any set of facts that you can look at this record and say there's a trial strategy there we may never agree with the trial strategy but there was a strategy there then you have to affirm this is direct appeal we can't decide whether the defendant you know what was going on with the defendant his lawyer other than to say that we have to presume effective assistance of counsel and when you look at what sam adam j to that jury it's very clear that he expected his client to testify it's also very clear that he lost the motion the montgomery motion before trial it's clear that he filed a motion about appellant hasn't provide us with a transcript so it must be held against him and it must be presumed that he lost that motion that therefore the defendants for approvable were going to come in against him when he testified if you look at the kinds of things defense counsel was saying in opening statement it was basically as you're a point out look my guy's a bad guy but he's going to fess up he's going to be man enough he's an own up to those bad things that he's done and that will make more believable when he comes on the stand and denies doing the shooting of this police officer in the bar in this robbery had nothing to do wit line that we're we're treading here in many of these cases where defense counsel says something that he can't back up an opening statement it's actually the state that's heard and in this case he actually said my client didn't do any name somebody else who could do it and he also he says that my you know my client didn't voluntarily give a statement in there's all these defenses that he throws in there that we can't contest and if his client takes the stand he's got t deal with his probles and he has to deal with cross examination but if he doesn't take the stand he doesn't have to deal with either of those now granted here he funded the probables but he did get his defense out and we could do nothing about it and it ineffective it would be for the yeah after the defense rested or before the defense rest of the judge asked that the defendant do you want to testify and sam adams says you know i've visited him numerous times at least ten times in this case a visit in private today we you know so clearly they were discussing at length i think we can presume the fact that the defendant was going to testify and he decided not to and that's his choice and his choice alone lawyer cannot make  plant testify and as constitutional right to decide it one way or the other and the defendant chose not to testify at which point the state asked for a sidebar saying judge you know we're kind of between a rock and a hard place here because in opening statement counsel said all these things and none of them have come come forward and we're kind of a disadvantage as to some things obviously some things but the defendant we recognize that but other things hurt the state and the judge says well you know you can tell in on it because all because you can't you know trample on his right to remain silent and and then say man i'm got up and and basically said you know i know you're looking over here and saying sam we probably thought f b i was going to testify i know that i know this case but i know what i'm doing in the neighborhood so he danced around the issue we tried to defuse what was coming when the state said remember that opening statement well you didn't hear any of that stuff which was a proper statement and you know the defense has conceded that we can properly comment like that when an opening statements made like that so if you allow defense counsel to as as justice when quite another to get out of jail free card you're allowing them make any statement they want an opening statement and if they want to throw the defense in the fine you know if it works it works if it doesn't you know and then you get your guy off then you don't have an appeal of it it doesn't work you have an appeal in you and you win on appeal so you win either way so it's actually encouraging this type of conduct now i think defense counsel should be entitled to rely on their assessment of whether or not they think their client is going to testify given this case you have to look at it prospectively whenever you're looking strictly and prospectively he knew that there was a or this officer shot in the stomach he is on morphine or other painkillers at the hospital he also has been hit very hard in the head with the butt of the gun remember he has twelve stitches in the side of his head and a big not there so i mean this man a suffered severe trauma over the course of that evening and in fact he doesn't even remember speaking to the detectives at the air he don't remember speaking anybody at the hour now we we simulated that he did because we have a detective  later he said that's why he didn't give a description two months later i don't think there's any evidence about whether they talked to him again two months later but but the evidence in the trial is that they did talk to him that night and he couldn't given it couldn't give a description but the minute that the day after he so i mean we can only do what he did make a decision after he was shot and everything he did make a discussion until two years later when he showed oh ok and he picked the guy he did he picked the guy out but there is no question that he had an opportunity to observe the defend in the bar there's no question that the defendant or the offender was wearing a stocking mask nylon stocking mask in a stretcher and that there's a tussle and that during that wrestling on the floor that that mask and know the defendant himself confessed to this crime now did he give a complete confession to everything that he did know he admitted being in the bar you met holding the gun even to doing the robbery but he was going to get shooting anybody when you take all that evidence together the evidence is very overwhelming and that's what defense counsel knew ahead of time and knowing that ahead of time he had to come up with a defense and that defense and you look at the things that he said in opening statement the things that he said could only have come from the defendant himself as i point out in the brief the answer discovery listed no other witnesses other than the people's lives so where else is he going to get this stuff about selling drugs as a twelve year old or the hierarchy of the gang or who this other person is introduced the extensive and inflammatory evidence regarding the jones murder the minimally constitutionally acceptable strategy of appealing to the jury sympathy regarding the murder of an urban shorter was utterly negate the reason why i think that obviously that has some applicability here is that just like the evidence that the supreme court is talking about in morris which was evidence of a no other crime there was a pretrial motion in that case that went in the defendant's favor and that the evidence was determined not to be admissible but despite that ruling and going into that ruling before the trial started the defense lawyer got up and talked  in depth in opening statement and the supreme court found that in that case the prejudice created by going into that inadmissible prejudicial highly inflammatory evidence was enough both to support a finding of ineffective assistance of counsel and to reverse a murder conviction i think that the exact same situation essentially is what we have here setting aside you know the possibility that there are some sleazy lawyer out there who's going to game the system i think what we have here is a problem that results not in frontin what otherwise would be admis impeachment telling the jury that your client's going to testify so what your client story is going to be and then the client not in fact testifying what we have here is the introduction by defense counsel of put them to front the second murder case with the idea of three hundred patients b s not deserving any brains i think there was some suggestion by the panel that the fact that mr alberto have been selling drugs when he was twelve years old kind of falls in that same vein like hid the fact that he's telling the jury that he has been selling drugs and says twelve years old it's going to garner some sympathy with the jury and that is that that may be why it was said but the reality is is that i think the same analysis applies that case and i'm not saying otherwise but i think that the route of the supreme court's decision and morris is that it was prejudicial it never should have been said and once you put that prejudice