and that the d n a evidence excluded him as one of them as the trial proceeded it became even more clear through the cross examination of the state's witnesses and especially during closing argument that billups defense was not just that he was s because defense counsel never moved to separate cases severance of cases should take place when joined or with unfairly prejudice either defend it and a failure to sever prejudices of the phone and under two different circumstances one is one of the found it makes an out of court statement against the other defendant or when the defendant's defenses are antagonistic and in this case the second situations where  ins presented by the state the d n a evidence showed that there was going to be some attempt to connect through d n a evidence donovan wheeler but that all the d n a evidence and any of the fingerprint evidence excluded john phillips that should have put him on alert and as the opening statements began it became clear that billups was going to use the d n a evidence referencing that every single piece of d n a evidence excluded time because the d n a evidence didn't exclude donovan wheeler and so we have that initial conflict right there and then as the case developed it became very clear that the theory of billups defense was that there were just too wrappers and that by closing i would say definitely defense counsel should have moved to sever if there wasn't enough evidence at the beginning of trial or during cross examination to make a proper argument savva it's definitely by the time a closing argument should've moved for mistrial or moved for severance and for severance because during closing defense counsel for billups explicitly from the state's witnesses suggesting that maybe they only heard one voice from the front of the jewelry store and they saw the one individual in back of the store and then used those comments to make the assertion that only two robbers it was it would the defense was explicitly that only two robbers were involved in the commission of the offense and then he went on to say not only that john phillips was not one of those robbers but that the two robbers a defense that there were two grabbers in fact that in and of itself is antagonistic because donovan wheeler testified that to an alibi and testified that he saw three pla being had committed the murder but it was through the cross examination of the witnesses and during closing argument where he presented a defense that he was not just that he was not the murderer but that being was the murderer and that's exactly what we have here the fact that phillips would not take the stand and point the finger at wheeler does not make this not antagonistic we have to look to the the defense that was presented by and if we do it should be clear that the defense counsel should have moved to saturdays cases because in a fact donovan wheeler was subjected to two accusers the state and belt ups and in this case prejudice is actually tangible because here it's clear that the jury believed phillips defense and because they acquitted him they they believed the theory that he presented and then they convicted donovan miller so in this particular case it's the that prejudice is absolutely visible couldn't have so could have been a strategic decision to not pursue their i don't think that there could be any sap sound trial strategy that could support  the belief that not pursuing a successful mistrial motion would be better than rolling the dice with the same jury who heard john phillips defense who at that point there's there's really no no reason to take that risk the mistrial would have been granted and he should  donovan wheeler was already prejudiced by that point by having to defend against two accusers and the trial might most certainly would have come out differently if defense counsel ha that you know perhaps they were relying on the other defense attorneys conduct or abilities that as the state argued in in their grief that is certainly not sound trial strategy because the better co counsel or i'm sorry the better opposing counsel does in presenting john bell it's case the more incriminating it is against donovan dealer and the other prejudicial aspect of the antagonistic defense is billups attorneys use of the d n a evidence so not only did the jury hear d n a evidence presented by the state but then it was reiterated in exaggerated and exploited by john phillips and that that d n a evidence should have come in in the first place and that would be the second argument supporting ineffective assistance of counsel that i wanted to address today you know john billups was the only person identified in this case by one of the victims as having a gun as being be robber with the gun the only person identified at all a reason why the antagonism in this case was particularly egregious that d n a and was an important part of the state's case and billups case and trial counsel should have moved to exclude it because it was so scientifically evidence any evidence that has any tendency to make a fact of consequence more or less probable than without it in this case the d n a probability calculations were s one thirty two thousand we're looking at two pieces of evidence one was a latex of a piece of a latex glove that was found just outside the door of the jewelry store that had a probability of inclusion of won in inclusion and then the minor profile was a one locus tast a one locus comparison with a wanted to probability of inclusion it's almost meaningless the other item was  a skull cap of black skullcap that was found across the street and in a fields near an open theater and that was found along with a metal pipe there was no human d n a found in the metal pipe but there was  mixture of d n a found on the skull cap of the major contributor could not be without suitable for comparison the second miner contributor they were only able to use three lowside out of fifteen to guess i'm arguing that both of them should have been excluded given the low number of one in thirty two thousand as compared to some of the other where is is like i said essentially meaningless but that that small number or barge number of the population that could have contributed to that sample coupled with the three used on a partial d n a and a minor d n a profile i think all of those factors contribute to a finding that those numbers in this case lead to should lead to a finding that it was baseline and i would just say there there might be but this is not it i mean this this it has to be more than this but if this court finds that the one in thirty two thousand was enough then certainly the  should have been excluded defense counsel should have moved to exclude that and even if it was aired only not to challenge the one into that error alone was enough to cause prejudice requiring a new trial in this case  that piece of evidence linked donovan wheeler to the crime scene just outside the front door of the jewelry store that's the only piece of evidence linking wheeler to the crime scene it's also the only piece of evidence also not being excluded from being the major contributor of the profile of the major profile on the piece of latex up so it completely destroys donovan wheeler's defense which was he wasn't there he wasn't there he was somewhere else he sees three men running past and that's when he and jabari o'connor connect and go hide in the basement together for different reasons the fact that that love was introduced really destroyed the credibility of donovan wheeler's testimony and prejudiced him because again donovan wheeler's found guilty of this crime where john billups is acquitted even though he's the only one that's actually identified so i think this evidence went a long way the state exaggerated the number the significance of these numbers in closing argument and john phillips trial attorney used these numbers in closing has the state actually said that the one in thirty two thousand is a significant number proud that significant and said that it was conclusive that the cap was the one worn by wheeler  that's just in cracked actually and it might have misled the the jury and believing that this was definitive proof that donovan wheeler had had touched the glove or had worn the pap when in fact the probability of inclusion statistics just relate to whether or not there's a probability that donovan wheeler could have been in the pool of people that could have contributed to that sample not codefendants phillips attorney argued that d n a doesn't lie and that the d n a tied to two black males to the crime scene and those two black males were conner and donovan wheeler so we have we have the state using this d n a evidence to destroy donovan wheeler's testimony at the credibility of the testimony we have the state using this d n a evidence to link wheeler to the crime scene and then we have billups attorney using this evidence to support a t man theory which again contradicts wheeler's testimony that he saw three men and also uses it directly against donovan real or to say the state proved beyond a reasonable doubt that the two men that that you know they used one locus and one task in three on the other and there's case law that shows that councils ineffective if they don't point out in especially a case like this where the evidence is so weak to begin with that in a non match any of the other lowside could be exclusion could be could you know could be affirmative proof exclusion and so the jury wasn't wasn't informed about that and many studies show that juries are really persuaded by d n a evidence and they believe the reliability of d n a evidence and in the case here where we were  i think that they could say well just like the state and i believe it was the state it that referred to the one and two that the the evidence in closing didn't say that it was highly probative but did refer to it at least in closing i think that any jury could easily think well you know especially because we know that they've bought philips to facts so they're thinking to themselves ok two guys two guys d might be on this wall right outside the jewelry store that makes sense you know and they may be more swayed by all of these little factors so i'm sorry your time vision time ok thank you or incomplete for resolving the claim and that is exactly this situation here where this is a strategic issue and there is no record as to why defense attorney severing the trial if the defense's became a pain and take an estate somehow failed to make that motion during trial even though he was looking for that during trial and so this is not a situation where it can be assumed that the defense attorney was ignorant of the situation where the defendant may have an opinion as to whether he wants to do that or not and he could have communicated that to the attorney and we have no way of knowing that on this record scuse me and the other thing is defense attorney could have read the during the year during the testimony seen their reactions gauge their reactions and had an opinion informed opinion as to the merits of proceeding with the trial before this jury versus chance saying that you can get a different jury that might you know not be as likely to acquit him also he would be forgoing the benefits that go along with the attacks on two party credibility  john phillips attorney made with respect to god and wheeler this issue of his skills however there were benefits on the other side here it was this is not a situation where it was an excuse just like  they're characterizing it almost that somehow the prosecution and billups attorney double team the defense here to mr donovan that wheeler it's not that situation because instead billups is operating on his own and he is working against the prosecution the prosecution that is relying on the testimony tomorrow carter and billups was showing why that testimony should not be forfeited if you went to another trial with a different jury by himself counsel let's assume this for purposes of argument say that we find that the admission of the evidence related to the latex was one in thirty two thousand on this whole cab which is much more powerful and the other one was a minor profile i believe in not the primary profile which was to party o'connor so em but i still have more arguments with respect to say is that the the the fact that billups attorney presented opening statements and closing arguments and cross examination is not equivalent to an accusation from billups from the witness stand the defense relies on where i was something along the lines of guilty people never testify in a case where one of the defendants did not testify and that is if i wish it was right to not incriminate himself and that's a very powerful error and that's not the situation there is no inherent error in an attorney commenting on the of events so that's why those that those firemen and cases are distinguishable from this situation it's also not a true contest as i explained between have the prosecution sort of letting the to defend this duke it out and whichever one who says he's going to get convict convicted and then one who wins is going to be acquitted now even though billups was acquitted it's not because up which has some sort of inherent suggestiveness to it and also they the the person in the store had something covering his face some sort of material covering his face which made it so it's not a very strong identification and also bad in a bedroom of a stranger somebody who claimed to have an affair with her sexual relations with which she denied and he didn't even know her name he thought her name was mary her name was amanda it just seemed to be a preposterous type of theory of defense but this is what he offered in his testimony and that's something that the jury can consider and the fact that he admitted on cross examination that he had traded clothes and provided some clothing to do barrio conner in the basement the basement where bribery proceeds were located so he's in the basement with robbery proceeds providing clothing or training clothing with your party o'connor all because he thought that he was told by somebody that the police were out in force and that he had some drugs in his pocket and he says he disposed of the drugs in a drain in the basement but somehow ended up on the bed of a stranger in and the joining apartment so it seems like something that the there's the testimony of o'connor but that is corroborated very strongly by very powerfully by the nearly overwhelming circumstantial evidence the d n a test on the skull cap and the circumstances of where he ended up and was after handed and for that reason there's there's no reasonable probability of a different result even if you got a his so this is whether or not to object to such dziedzic issue and the defense attorney knowing mitchell having been decided by the time of the trial could have known that this would be a fruitless objection to been decided at that point so the defense the defense attorney could have made that objection but the question is whether every competent attorney would have done so because there is an element of would like because the defense is pointing out a few things that perhaps could have been added to it but there was a meaningful cross examination there there was questioning about how probability squirt and whether or not something is  match and things like that so there was a fairly extensive line of attack to the weight of the d n a evidence so the defense attorney did not have to necessarily challenge it in this military in order to provide effect assistance is it your opinion that it was clear to the jury that with respect to the evidence that was just the one into the d n a evidence that you can't two people walking down the street is the mission that like out of a room of ten people that all ten could be excluded from the one in thirty two thousand or something along the lines that was even that one or it's i think it would have been they could have all been included sort of like and not i'm sorry it's not attack on the weight of that evidence and to say that you are the one and she was it have to be even more likely then you could be talking about much larger rooms of people who could all not be excluded so i think that was the very powerful line of attack and  the scene of the crime or to achieve arielle connor unlike the club so the club provided much more of a link to the crime than the skull cap which was found in an open field next to another item that was completely not connected to anything as for defense counsel's failure to challenge the d because pike hadn't been out yet that evidence of the rules of evidence have been on the books for a really long time and the attorney in pike used them for the first in that case and attorneys before heike used them statistic that evidence in that case was not closely balanced it was nowhere near as suspect as the evidence in this case and also that issue on appeal did was not the same issue that we have here that issue defense counsel on appeal had argued that the evidence was inadmissible because it didn't meet the f b i standards to be a true match that's not what we're arguing here we're arguing that the evidence was  so insignificant that it was inadmissible as relevant evidence and then just going back to the sufferance issue this issue does not need to be raised on collateral proceedings and in fact this the recent only supreme court case of each supports wheeler's contention on that point because the twist presented with the issue of whether ineffective assistance  it can and should be and that's the case we have here the record is is it is adequate to address the issue of race of judicial resources for wheeler to have filed this if you file a p c what would be attached to it the transcript from this case which you currently have so there's nothing more that this court needs to address the issue and finally in reference to the  and so for under those circumstances there's no adequate trial strategy to support the conclusion that once the antagonism became crystal clear counsel should not have moved to separate  my recollection there was some evidence about canine unit coming in they were kind of following around and looking around i'm not certain that that's sufficient proof of  direct path there was no other evidence found in that grassy area that was linked to the crime scene or so i think it may be inconclusive that w and for those reasons and the reasons stated in donovan wheeler's briefs we ask that this court reverse his convictions outright based on issue one we're personally man for a new trial based on issues two three five and