examination of her and therefore after he opened the store the state was able to question other witnesses about the down identification and another identification that was made from the video counsel's actions are inexplicable and he was wholly ineffective for without the video the identification evidence consists of a single inquiries implication made by the bank manager three years after the offense of baby of a stranger who the bank manager briefly saw  comparison also shows why counsel this can never be considered a reasonable sound trial strategy for its defense counsel absent counsel's cross examination the lead in the video never would have come in it was out period the state argues that the defense wanted to portray the investigation as shoddy or admit possibly the state witnesses as bumbling and this would have been sound trial strategy had state been allowed to introduce the identifications of the video or if they did an end around and run around the trial judge's ruling well you can't as i say as a state you don't have to know it for sure would've been different it has to be a reasonable probability that it would have been different and if you have if you compare a single in court identification three years after the offense of somebody who was disguise who the person such briefly three years here for the offense she the what do you come term her identification would you call her her identification with the defend bad because he was not around again but the tape wouldn't have the jury would nothing about the tape at all so it would be as if the first identification came in court three years later if we didn't have the tape by the bank manager in addition to her in court it identification that is significantly stronger case for the state and that possibly could change the jury's credibility terminations toward the city where he's here if we just have he said she said the jury there's a more reasonable probability that the jury would have found for the defense the defendant bring forth a robbery shinn relative to where she was that they are i think she did she testified that she was that she's never been in that bank branc any case this is the this is the situation that this instruction should be given i suppose a defense to propose it was refused that would be investigation and even maybe implying that this tape might have hurt the state so it was lost purposely however the jury was no actually told that they can make a difference under the scituate under these circumstances where the identifications was the only real issue in this  case the probability of the instruction would have changed the outcome of the trial is is evident rendering counsel ineffective under the strict standard it is also our contention that even with the identifications from the video the state's case was weak it's weaker without it was still weak there was a long time between the in court and identification the offense the bank manager didn't know misspelt sarsi identify the offender after briefly looking at or never quite provided scription to state argues that she was looking at the id and looking at the at the offender and so she believe was the two things that were mentioned that was was mentioned yes our contention that there is under no circumstances could this be is the same as you have to be sound and has to be reasonable and there are no circumstances where this could be an unreasonable that this could be a reasonable strategy there is no there is no absolutely this is classic incompetence you bringing in evidence against your client and you're not proposing instruction that could have ameliorated that situation those are two two instances of in fact  why he did that because given what he was presented with that was the most sound trial strategy that he could have come up with i'd like to start by pointing out what the trial judge's ruling really was because i think that's a little bit of a mis a wrote this phrase but i'm arguing the case today as i don't have it since as i don't have it the judge says again videotape is barred now there is no request for an clarification of that ruling there is no request by the defense attorney or or by the defense attorney who says well judge what's really  is testimony and testimony concerning the tape and he didn't ask seventy part of that surprised he didn't ask for any further clarification of that whirling so when the trial started both parties were talking about the tape there was no objection the tr judge doesn't interact from opening statement and say we'll wait a minute you're seeing the printers of my ruling nothing like they had the tape was missing obviously the tape itself wasn't going to come in but that does it mean the testimony regarding the identification procedures that took place were not permitted to come in the defense attorney from the get go that he was going to use that piece of evidence to the defendant's advantage and he knew exactly what he was doing and it was a smart and sound trial strategy from the beginning human rights to that tape and nearer to the defendant's benefit it was a roof off of the defendant because the jury wasn't going to see the defendant on that tape stepping up to the bank teller that day and he was going to be able to argue up and down through cross examining the witnesses believe what he says he's got thirty years of experience come on join the reality that would have been helpful to have the tape we don't have it will be shown with the defendant did we don't have it you can't believe the state's witnesses because that tape we don't i have the tape to prove what they're actually doing in their identifications of this particular defendant would be a travesty of justice to find her guilty all the things he argued up and down he told the jury you should be concerned the state hasn't provided you with a tape which would have been corroborating evidence of of  the bank supervisor who we would submit her testimony was certainly sufficient under the five tests are to five hard tests under slim to make her identify her identification positive she had i joke i think i mean it is that important finding her well i don't think the absence of the tent necessarily precludes her testimony that she knows the defendant i mean she will still have been able to testify that i know this defendant she said she was a resident in the in the domestic violence shelter where i work i've had meetings with her i've been in a close small room with her in fact the defendant testified to just move in the month before this crim circumstance that you can't ignore i think without the tape you still would have been able to have elenchi ocus testimony that she knew this defendant she nor from the from and she didn't just pass or once or twice it wasn't just a fleeting moment she knew her body she knew her body language she knew her mannerisms she knew her face she she knew what that doesn't change three years later when you know somebody you know them three years later and i think the fact that three years without the take the three years that passes between when the bank teller makes the identification a trial is a question and issue for the trier of fact it's one consideration to make this take look bad for losing the tape make detective and look bad or bumbling for losing the tape however if they weren't coming in at all there's absolute reason for the defense counsel to basically set up a straw man playing in bad evidence and then argue against it let me ask ask their witness about a pretrial identification if they thought that they could be as far as the jury instruction although there's no case in point maybe because the situation has never happened here however even though it's a known i p r instruction  it would be completely appropriate in this case defense not to say for sure that the defendant would have been acquitted just that there's a reasonable probability that the trial would have been different had counsel performed affectively and as far as the ellen shields testimony about knowing misspelt so yeah she would have been able to protest by the death of she would have been able to testify i saw this video and i said that sharon and she didn't know her as a friend she saw her intreated her son in a  busy room and shelter for her run like a period of fifteen minutes half hour three three over three years before the trial so this isn't somebody that she hasn't sumit acquaintance with assumingly this woman works in the shelter and sees