the next case on the docket this morning is number fifty seven teams are all forty seven want people versus any irgun for the opponent teeth mckenney is jennifer lassie arguing for the apple a people of the state of the heart is jennifer camden each side will have up to ten minutes for their argument your promo last will have five minutes for rebuttal you'll see the digital timekeeping device on my screen when the gavel when time is expired please remember only the clerk is recorded is permitted to record these proceed argument to the rule for thirty one dollars b ever trial counsel was ineffective in this case where he promised the jury that mr mckinney would testify and that jurors would hear evidence that it was impossible for the bullet in gilmore's best to have been fired from the gun in mr mckinney's yard counsel's opening statement suggested that gilmore shot and framed mr mckinney because the two were neighbors and because gilmore had issues with mr mccann during his opening statement counsel told jurors that the gun that gilmore claims mr mckinney threw could not have shot the bullet in gilmore's best specifically telling jurors you're going to hear that the bullet that was taken out of that bullet proof vest was too big to have come from the twenty two that they're saying that skinny hat couldn't have shot him council also told jurors that mr mckinney would testify telling them skinny's going to tell you he wasn't wearing any gloves he wasn't he had no reason to he was driving home from the doctor he didn't plan on any of that now the ballistics evidence that council promise and never delivered was a critical issue in the defense's theory of the case that gilmore had framed mr mckinney and for counsel make this promise at the beginning of the case created heightened expectations and jers and when counsel bell to deliver he lost all credibility counsel's valure to deliver this promised evidence left counsel floundering about in closing argument where counsel argued that gilmore shot and framed mr mckinney or alternatively or alternatively that gilmore was actually shot by someone else and assumed it was mr mckinney now the state attempts to downplay the council's promise that mr mckinney would testify as simply a promise that mr mckinney would tell jurors he was not wearing gloves however reasonable jurors would not expect mr mckinney to take the stand to make a single statement that he was wearing gloves counsel promise would lead reasonable jurors to believe that mr mckinney would take the stand and tell his side of the story that he wasn't wearing gloves that he didn't that he had just gone to the doctor that he didn't plan on any of this just to counsel a promise not only to counsel to tell jurors that mr mckinney would testify during opening statements but counsel reminded jurors about mr mckinney's belly or to testify during closing arguments and then counsel compared mr mckinney spell you to testify with gilmore's refusal to speak to police something counsel characterized as a little bit fishy and cause for concern now in reality is this court held that where defense counsel makes promises like these these broad dramatic promises exculpatory evidence counsel has a duty to put evidence into the record explaining his failure to fulfill the dramatic promises he made in opening and that was brown is cited in the brief counsel's valure to do so here is unreasonable and these errors by counsel matters mr to mr mckinney was prejudiced by counsel's mistake because evidence here was not overwhelming jurors might have concluded the gilmore had actually framed mr mckinney with evidence there was evidence to support that defense theory when conducting the traffic stop  conducting the traffic stop gilmore did not activate his lights sirens or audio video camera at st he claimed his memory card was full but then he also claims the camera equipment was junk however officer steps camera equipment seemed to work just fine as evidenced by the video is that in the record now gilmore was mr mckinney's neighbor another neighbor who lived next door to mr mckinney said the officer gilmore would stand his back door and stare at mr mckinney's house four or five times per week byrd felt uneasy about the situation if he and she called it a very unhealthy situation now keep larson another neighbor  he observed with a traffic stop as it began he's testified i believe that when he saw gilmore following mr mckinney down the street at the traffic stop with beginning he knew it wasn't going to be good however he saw mr mckinney complying with gilmore at the beginning he saw mr mckinney handing gilmore papers at the beginning of the traffic stop and at that point keep larson walks away from where he's able to view the traffic stop and then he hears gunshots now k larson did initially testify that he saw mr mckinney shooting however on cross examination he admitted that he saw mr mckinney pointing and that gilmore was blocking his view and he could not tell what i quote if anything mr mckinney was holding and if you look at the exhibit i believe if people i believe people today that i have in the record it's an aerial view of the street and it shows keith larson's home compared to keith's mckinney's home and if you see that aerial view and realize where gilmore's truck was part it makes sense that keith larson testimony makes sense where he says gilmore was blocking his view it's unclear how much of anything from these exhibit the keep larson could actually fee based on where his home was located where gilmore struck with part and where he's mckinney's house is that the evidence here was not overwhelming sap arrived on scene and told officer gilmore to sit in his truck and it was after that when gilmore goes to his truck comes back and then claims to have found the gun on the ground sapp did not see the gun before gilmore picked it up gilmore claimed he was  shot sap saw his chest bare chested but did not see any visible injuries when state police requested to interview officer gilmore he spoke with his union lawyer instead and filed an amended report no prints of mr yeah i just simply meant you know there was no evidence of prints on the gun presented at trial so the evidence here was not overwhelming against mr kenny and so counsel's dramatic promises that he made in opening that mr mckinney would testify and that ballistics evidence would prove that that gun in mr mckinney's yard could not have shot that bullet in gilmore's best these were dramatic  well so there was some evidence that there was some other bullets but counsels promise was that the bullet in gilmore's vest could not have been shot by the gun that they're claiming that he had he had the who don't and that was justified to them so no no one testified to that in opening a yes so in opening statement counsel promised that the jury would hear that evidence he promised the jurors you'll hear that that gun couldn't have shot gilmore that bullet that they took out of gilmore's best couldn't have been fired from that gun and no one no evidence was ever presented on that no testimony no evidence was ever presented to established to fulfill counsel promise about that and that would be exculpatory evidence that would almost demand an acquittal if you know morse claiming that this is the gun mr mckinney used to shoot him and ballistic evidence would have stablished that there is no possible way that gun could have done this the sack jurors would almost have to acquit mr mckinney so this is a dramatic promise for counsel to make and then break through the jurors miss i think closely balanced is the requirement whenever we are asserting a plane error argument and it's i don't think it's necessarily required for ineffective assistance of my time is up but if i could answer that yes me so in people versus brian this court found that there was sufficient evidence to find bryant guilty however because counsel had made such a dramatic promise an opening and felt to deliver this court held  fulfill his promise made an opening did prejudiced the defendant in people versus bryant and this court reversed and remanded in spite of there being sufficient evidence to convict ok thank you very much you'll have a few claims of an effective assistance based on unfulfilled promises in opening statement now the state argues that there are several reasons why the defendant hasn't met his burden of showing either prejudiced or deficient performance as to either claim the performance arguments overlap somewhat so i'd like to address them together from his st claim based on the defendant's lawyer to testify the defendant can't show deficient performance as to that claim because the record doesn't explain what occurred and that either could reflect reasonable performance and the court in that case declined to presume deficient performance based on the silence in the record now the state in this case is arguing that this court should follow demanding in the record and declined to follow manning the state would argue that the manning analysis is the better one it's consistent with the general principles applicable on appeal that silence of the record is resolved against the appellant and that it's his burden on appeal to show that  occurred and that defense counsel's performance is presumed reasonable i'd also note that the realist decision respectfully on that point stands alone as to whether there is some duty on the part of defense counsel to fill in the gap and against counsel there and the appellate courts in those cases did intend you to hold the defendant on appeal to his burden of affirmative lee showing i fish and performance i know that in cases such as gordon and the bryant case the record w that was evidence that would tend to that would tend to exculpate the defendant however that doesn't mean that however even in those cases even in those cases when children talbert the promised evidence in those cases was an unfulfilled promise leitz the defendant with no theory supported by the defense there was no meaningful adversarial testing and therefore deficient performance but that's not what happened here the defendant did present their that gilmore was lying he presented the testimony  byrd in support of that and presented the cross examination of bill moore in support of that the counsel in this case didn't ask the jury to believe anything in closing argument that he had not supported thus there was no deficient performance under requires and if there's prejudice or denial of real justice and there is no prejudice where the defendant can raise and does raise all of his sentencing errors based on the record that does exist and the  the discretion to consider them on the merits the state has the ability to forfeit its forfeit your argument based on a failure to raise those claims in a in a post sentencing motion of the state him and and then saw the defendant point a gun at him and shoot again where the neighbor larson testified that he heard the st shot that offended and gilmore engaged in what he described as a shoot out with the defendant clearly the evidence was closely balanced depends on a such things as whether the jurors were asked to determine the relative credibility of witnesses here they were not or asked to decide between two equally credible versions of events here they were not so for that manning that if the defendant contrary to defense counsel previous assertion decided not to testify at the trial his counsel performance was not deficient however we decline we decline to presume that defense counsel's decision not to present the defense of testimony after promising to do so in opening statements was the result of trial strategy so in manning's or in rio does this court specifically rejected the manning approach and there's no reason to depart from that precedent here and again here it's not just a promise to testify it's a promise of extol to tory ballistics evidence and while the state agrees that it's exculpatory this evidence if it existed  would demand an acquittal i mean it would almost can you know if it wins great support to counsel argument that gilmore was framing mr mckinney is that bullet in that vest if there's no way that could have come out of that gun i mean it would almost demand an acquittal so it's not just a promise to testify like embryon is this is much worse the promises made here with respect to the state's argument about page that the evidence here was not overwhelming it's so counsel's error here mattered the evidence here was not so overwhelming as to prevent the jury from finding defense counsel's theory plausible and that's why this serious error had a serious impact on the outcome of the case with respect to the state's claims regarding people arsons testimony about it being the shootout again initially keith larson did say that he  so there it is a small gun and it is in a side it round wallet which you would think would make it even more visible inside that brown you know you don't shoot with it which is the brown wallet but i would say that it's very small upright spin in your hand and you can see well your honor that's a good point if it was not shot within the holster somehow it got back into the holster to be photographed by police because when it was photographed on the ground it was photographed inside the holster before police removed from the holster so it when you view the exhibits you'll see a picture of it inside  shooting took place correct well bill maher does at one point or does claim that he saw mr mckinney throw it however when it's recovered on the ground i believe i believe the testimony shows that it was so the shooting takes place in this very very small front yard which i believe you can see in a few of the exhibits it shows it's a very small front yard and this shooting place takes place in one part of that small front yard and the gun i distance but i do know that say to exhibit six in the record shows that it is an incredibly small front yard you know i could guess but i would hate to do that i think the record does talk about it but off the top of my head i just can't remember the distance but you can see gilmore struck and you can see mr mckinney's vehicle and you can see that the yard is about the size of a vehicle it appears so it's a very small front yard and another point is gilmore claims he saw mr mckinney throw the gun at trial but he also admits that he omitted that from all of his amended reports that he filed i believe i'm out of time so less your honour's had  more questions we would respectfully request that you reverse the remand for a new trial as requested in arguments one and two or that you grant the sentencing relief in arguments three and four all right thank you all for your arguments this morning madam will be