different although i don't think the focus of the original brief was was defective in any way i'd like to think that this whole case is touched by  petition has stated an arguable claim one of the things that people advocate sometimes do to their detriment is try to include every conceivable are so mr jake carried the argument i'm page twenty three of this handwritten post conviction petition but it was in there and it was on his hand written page twenty four trial counsel did nothing fail to object to any of the state's abuse counsel never objected to the photo array that the state presented to the jury  states a claim for relief under the post conviction the defendant's claim in a nutshell mr jakes claim is that despite the fact that a motion in women a had been involving bruce oddly harm mr bernard did you get a chance to look at the pictures i did yes i did i think there was more than bruising there was swelling other hand and there was bruising all over her arms her domestic violence acts were coming because the statute allows that and it did and that would be a proper exercise of the court's discretion but not what but once the court ruled mostly mr takes favor harm so you would be able to argue to the jury you can take that into consideration and you should take that into consideration in your determination of whether or not he committed a domestic battery at five or twent shouldn't take that into consideration in determining whether or not the february twenty third mastic battery cause great bodily harm you should not be having not that's from other day it's four it's a measurement of is this enough to creat knowledge that you gave her the black eye and the black guy was there earlier and we are you know that some of this evidence is going to be that you had a tumultuous relationship so we would actually be highlighting that so maybe it would be better not to say anything it and just hope the jury considers the evidence the way it's supposed to if if the answer to that  you already know that and what my response is well that's trial strategy but they have trials that question whether or not this is a proper trial strategy is best a divorce and a theory on the post conviction petition and that's what we're here for was this arguably plaintiff of ineffective assistance goes yes and you know i have the discretion right now but what would that strategy have but it's arguable that this was a bad strategy it's arguable that this was ineffective assistance of counsel if i were defending this case i'd be very concerned about evidence that went to the rest of the injuries because i know where there's going to be a big difference between whether the jury finds great bodily harm or not i'll let him find face but the the stepford itself there's a statute that commits evidence of prior domestic violence acts i don't understand and even even if the and i'm not saying it but even if the motion in limine it was violated doesn't that matter that the statute permits this evidence well i would i would say that if the motion elimina ineffective and perhaps op had a hearing on the merits of this scale perhaps someone trying to defend this conviction but it's proof that it was just trial strategy but that's what i been there the just of an arguable claim for post conviction relief and the court should have allowed it to go past the first stage the  we're not here today to determine whether this post conviction petition wins or loses just whether it should have been tossed out at this very preliminary stage without ever having the discussion about what was your stre perhaps that the motion in limine it was not being violated the pictures show her condition and the date in question after she was at the hospital it showed her condition that day why would they be admitted  allowed the jury to start to accumulate these bruises and then the big test for the jury they may not even realize that this was their pick to us this is this great bodily harm or well they've got pictures of like injuries i injuries what did that already prevailed on a motion in limine she sort of says well animal power perhaps we would have a hearing on this post conviction petition and she'd be able to defend her actions or the prosecutor would be able to have her explain that this was some clever trial strategy but perhaps not and did mr j arguably state a claim that he was denied affective assistance of counsel and that his a really cost mr jake and it was a result of trial counsel's deficient supreme other two promised us for the second in this prejudice yes and if if we were just here today just see whether or not he'd been proven guilty of a domestic unreasonable to think that a try or effect would say wow that's great but that one bruise is a this six bruises are so that why you let the picture of a black guy who was let go back when that snap charge clearly there is no testimony that he punched her in the eyes right i think and there's one picture that is exclusively and it makes you scratch your head to wonder why would defense counsel in a criminal case where a big issue is great going on it was clear to go for the middle ground which was battery and she was successful in getting instructions on battery as applied to both the felony counts and part of her strategy bleed so she was inconsistent and the pictures themselves don't show any bleeding the pictures themselves don't show any broken bones or the things we commonly associate with great bodily harm also defense counsel strategy was that the victim had hidden motives wanted to get rid of mr joe cleaned out his checking account cetera et cetera et cetera and a persisten theme of hers was that these bruises particularly to the right arm don't match a fist or hand and if you look at them the it at least in layman's terms some of them don't match that so the pictures were consistent with defense counsel trial strategy of pointing out that the victim made inconsistent statements and of the strategy of trying to get a lesser included stretches in which he did and having him convicted of a lesser crime which will not have exposed him to this sentence that he finally received so when he keeps say why did she do this why did you do that well that's it least disturbing photograph in here besides the text messages from the friend and saying he's going to beat the his victim was about a guy i can imagine that that photograph would have any effect on anybody but even so the statute allows today it's a new day you want to beat up your wife you want to beat up your girlfriend they're going to bring in prior incidents and that's what happened here and that's what the judge's ruling was the motion limit he wasn't violated the judge said you can't you can't chapter and verse bring out this stuff and the prosecutor didn't the prosecutor just brought up the relationship from a few days before and i was glad to hear the defense counsel but i think all three lawyers have done everything they could for mr kay the trial lawyer in the to appellate courts have done everything they could for mr jake but the facts don't favor him but i was pleased to see that  you've seen or judge and i don't i know you don't we're trying to show it but this is what it is just that's not much at all compared to the other you know tell me that this is going to throw the jury in to an emotional state where they can analyze the evidence this  charge which made a great deal of difference to the outcome practical for him in this case so he had a history major says that was a porn time question strategy well the time to question strategy is that hearing on the merits of a post conviction petition then it's fair game and we never got today even though mr j arguably stated that my counsel was deficient by the strictest the time to question strategy would be a hearing on the merits of the trial or with witnesses call including the trial defense attorney to talk about that's just that's the real role of a trial lawyer in the court is how is this going to be received by the jury now and that's why we practice in a courtroom a little bit differently that trial the jury trial you have to be concerned about the fact that if i send back seven photos all of these people trying their best as jurors are going to be able to make the same legal distinctions sort things out and you know  criminal defense attorney keep in mind that now they're not perfect i better not let them see this picture of the black eye because then they fail to sort it out in their minds that's why it's maybe more prejudicial than probative well mr mangers who is