bullets in an alley and pick them up because he did not want to just leave the bullets spare for any children for anyone to find them and to do bad things with them he had no gun on him and he reasonably believed that by thinking up the bullets he was preventing greater injury the state a trial failed to prove beyond a reasonable doubt that the affirmative defense of necessity did not apply to mr alice and it was the state's burden and it did not disprove necessity beyond a reasonable doubt this is a jury trial yes it's tough burden there is and there is deference to the jury finding of guilt yes oh but the jury's another person available to pick them up and take them to the fire department well her testimony was that she had told him not to pick him up right so i believe that it was his belief and that that wasn't an option to give it to her and he you believe is that a reasonable belie well if there's no one else for him to give it to for her telling him not to pick him up isn't it an indication that she wouldn't if he says you know i've i've i've been after all but i better not pick him up that's true but it's his reasonable belief and he testified that he believed that he didn't want to just leave them there in the alley that he had seen things john you know two bullets you guys are causing the gun violence things like that so he had some personal you know experiences where people had you know when heard about things you know people doing bad things with bullets when it's a jury rejected his testimony yes well they believe he had the bullets at home  on his person and the whole time and he made up story probably even seeing them in the out well yes testimony made sense here i mean he just has bullets in his pocket there's no gun again there's no gun so there's no harm in him his pocket and she did tell him you know there was that testimony that she told him not to come up still they were making up some sort of story if i don't know if it would really make a lot of sense for her to you know testify that she told him not to pick him up  but so it's not a situation where you know she seems to be making up some type of story talking about how he acted perfectly you know and things like that and he used his really he had a reasonable belief here there's a threat that someone you know like he testified to he had known people you know to do bad things with just the bullets if you just leave the bullets there his harmon actually picking up the bullets where he doesn't have a gun so he can do no har going to occur well it is odd that there's just six bullets laying in the alley it's possible that someone is speculation but someone could have left them there you know intending to come back in you know have a mountain and use a gun so that's a possibility and also just children or anyone finding gold ok we'll leave the show some kid finds the butch what's the greater her score her that he could like mr alice suspect that he had seen things you know you could do for lack of a better term stupid things with you know with that he had seen kids do with bullets you know throwing them into a fire from a cinder blocks on them those are the examples that you provided that he had past experiences so again he doesn't have a gun so he has no firearm there's no evidence at all that you know he has a gun or anything so his harm there's no harm in him he's not posing a threat by possessing the bullets he can do no injury because he doesn't to commit this crime so as to avoid so greater harm yes in the greater harm of just leaving the bullets there were anyone done without a gun could find them and do something that i am i shouldn't have any nation i'm not going to get rid of it as quickly as possible i'm just going to go about the daily affairs of wife as opposed to seeking some reasonable alternative to carrying in my pocket i if you are a jerk i'm not supposed to we're not supposed to place ourselves in the place of jersey or as tourist places selves in our place but i think you can understand that a reasonable jerk could  infer that a couple of points there first of all the situation at the time that he was in with his girlfriend and their four year old daughter who had just woken up from a nap and was hungry and that was the whole point of them was to go and get food for the young girl so that they could have dinner because she was hungry so that situation they were focused on getting food and i know is having young children when you have someone you know a four year old who just woke up from an out and trying to get you know some food that was their focus at the time they happen to walk through the alley find the bullets but his focus was on getting the food and there's nothing in the language of the necessity statute that says you must turn the bullets and immediately now and there's nothing in there that says  he struck someone because it was necessary to prevent them from striking somebody else you know it's both self defense and assess it he this is this is continuing well my focus again is that this is a relatively short time period or you know it's we're not talking hours or anything like that you know it's just i think it's a half mile from his house to where he was arrested and they found the bullets about halfway between there so i mean probably you know just a matter of minutes that he possessed the bullets and there was no proof that he was not going to turn them in i think his focus at that time was to get food and then he got into whatever happened at a meat market than he was arrested so there's no doubt is the key is that the state has no proof that he would not have turned the men say after getting food and on their way back home there was evidence that there was a fire station nearby so that the burden is on the state to prove beyond a reasonable doubt that he would not have turned them in in theory to testify that he was going to turn them in but he just essentially did not have the opportunity to because he was arrested so there's nothing in the statute that says he must do so immediately but again it was all in a relatively short time period nothing to prove that he would not have turned them in if your honor said no further questions on that argument i'd like to proceed to the second argument the key here is that the officer gave a statement about a knife and that was so prejudicial to mr alice and does not help his defense at all and the information about the knife not only hurts mr ellis his credibility where it was really only his testimony against the police officers in his testimony was so crucial to the defense of the society so this statement about there being a prior alter kitchen where he was threatening someone with a knife to simply the knife not only hurt his credibility but it affects how the jury assess the necessity defense facts on the jury saw mr alice do they see him as a violent person who is likely to possess weapons or ammunition or do they see him a someone who you know as he testified to we picked them up because you didn't want anyone else getting did the state rely on this evidence in any other i would argue that your honor should really focus on the recent case of people versus bowling where this courts emphasise the importance of balancing the need for an officer's testimony and this type of situation including details about the radio call and the need here there is no need to mention the night because the knife was not involved this is not a case about you know a knife or about what happened in the market and all the jury needs to so the potential so again balancing then the need for the officer statement there really is no need to mention the details about the radio call especially the night but the potential prejudice here it's very prejudicial because of the facts again like i said  s how the jury views mr ellis not only his credibility but if the jury heard about him frightening an employee with a knife they're likely to see him as a violent person and the type of person who would or i think it would have been more than sufficient to like him saying that you know he was dispatched to the market because the subject was threatening an employee and leave off the but even that i mean i think under  bowling i think it's sufficient to say that units were dispatched to the market because there was an altercation or it just started now but i think that unrelated matter that could be something like that yes you know the key here is the knife and the threatening in the employee is also pretty prejudicial as well but i think the real be the the specific the mention of the knife here was particularly prejudicial here i think it would have been more than sufficient to say that there was a radio call about and therefore must be accepted by as true by the trier of fact such that the defense of the firm of defense must be accepted by the court as a matter of law and that is sort of  believes this is a rare case where the defense testimony must be accepted as true and there is no credibility question to even be reached in other words i it seems what the defense is for the thing is that the jury verdict should have been directed i know they're not specifically saying that but the ordinary sufficiency of evidence argument is that the jurors verdict was or that the evidence  and if the defense position is that the defendant defense was established as a matter of law sort of like the golan's case they rely on where in that case it was on contradicted their with even by circumstances and that and that's what gets important is the warrant case where and i mean even the situation here with the defense argument today is admitted that it is odd that someone would find six bullets lying on the ground in an alley well that's  circumstance that can be considered by a true fact it determining whether defense testimony is true i mean it's just one of the circumstances and then when they're picked up and he says well they don't have a phone to call the police but then they walk right by the fire so he also said he was going to go back home after he left the tennessee meat market so he was going to sensually leave the area of a of a place where he could of deposit the bullets with a public safety official i mean is this so and alternative that he decided not to take and that is that thereby makes his credibility in the credibility of this witness amber blackburne in question the jury then can make a reasonable decision as to whether or not to believe or disbelieve and if the jurors reasonably believed the defense testimony of an affirmative defense like self defense in another situation if you have two people somebody dies and one person says well he's threatening  gun i had to shoot him and there's no other witnesses the jurors can decide whether to believe or disbelieve that and if the jurors disbelieve it this is of make it easier for the jurors to this will leave you know if they think he's the kind of guy with punish the defendant for the oth it's not he's been a bad guy in the past it's he's the kind of person that would threaten somebody with a knife at the same time that he's got bullets in his pocket at the same time that he's a general case which they rely on insurance they hear say reports were that a man was with a gun and that the defendant was fit that description and it was relevant in that because the hearing which makes you want to about six be generous and prosecutors and the whole state twenty stand the concept of how this should really work right and i suppose you know that was twenty nine years ago that this and this is really pretty bad here and i'm wondering will we ever get anything changed unless we start reversing convictions and given  a lot of experience this seems as simple a case as there could possibly be one with this the cop maybe we should reverse remand and sit by the way when you go back there is no there this is about the knife here there's only one reference unlike your which was multiple references so there is a possible idea here that the that the defense counsel might not want to highlight this evidence by objecting and also this that strategy there there is a conceivable trag here and this is why the major reason why this is not the appropriate case rehearse on this particular issue is because this is a defendant who the police ordered to the ground handcuff then ask him whether he has any contraband his person and he said oh i have six bullets in my pocket so in other words the circumstances the rest are crucial here these are the the defense is not contesting is the bullets so the question is whether he has a necessity defense and the the danger of unfair prejudice of which connecting a knife and in this would be have some danger been purchased with those that would stand surely outweigh the proper purpose of this evidence coming in which would have to be necessary to explain the officers actions and then officers actions is ordering him to the ground and handcuffing them right away and going right to the search to try to find the night so essentially it is very crucial in this case for the defense or for the juror to know altercation with a weapon because the police are treating him as if he is armed by ordering him to the ground where i want to keep watching t v shows if you're ever arresting someone whether you know years of work with police have to be careful that he might have a weapon and if they report her are you men think and threats of physical threats at the grocery store or and the police and here's the argument that he was unable to turn in these bullets because he was arrested by the police so the circumstances and the method of execution of their arrest and the reason why the police effectuated this stop and arrest in the manner they did who approaches the defendant and he's not like oh you're out so i have these bullets in my pocket i want to turn in that's not the first thing he does it is only when a physical search is immediately imminent does he then say officer i have bullets in my pocket and that is why this is the i book ace that would make this not appropriate to sort of make this statement rehearsal on the camera show question yes he did jury know that the officer did not find  altercation as being not relevant or something they were given a limiting instruction on this i mean so there are some it's a perfect case but i think the major issue here is also the strickland first prong there is some conceivable strategic issue here for the defense to capitalize on the timing and manner of how the arrest was effectuated and why he was stopped the way he was which prevented him from turning the bullets in i mean so there is some conceivable strategic value here and it's not like that you're the jury case where there was absolutely no strategic value to letting multiple officers come in and use an opening statement in closing argument and that was totally let down without any objection and that and that was an appropriate reversal insurer even  obvious that there was ineffective assistance and unreasonable representation here it's not clear from the record that this that this defense counsel object acted unprofessionally by not objecting that's not obvious from the thank you your honour's i'm just a few points to make as far strategy there is no reasonable strategy here by defense counsel to live in information about a knife because that statement of a knife is just so testify as to the arrest and he did actually say that when he that he did a pat down search and you know to search for any weapons and that's something that he testified that that is something that is done to everyone that's taken under a blast he didn't make any mention of locating a knife he did not do coke no no and he did say and and oh excuse me your honor he asked defendant if he had anything on his defense and i also just wanted to make one in answer to where the fire department was as far as the first question and just to the reminder they were in an alley so it's not really clear where does that leave the fire matter will be taken under advisement will be in recess