scene tido walk ins to the scene there was no weapon recovered no clothing that was described this recovered no fingerprints or footprints matched donald and no blood was found on any part of donald from the murder of  and and that scene was a very bloody and messy scene there was no wink or motive provided for why donald wouldn't commit a crime or after all was he arrested i believe he was arrested approximately five hours following witness is the reason we are here today that third witness was melissa wu she was seven years old at the time of alford curry's murder in the seventy two hours following the crime she was twice as photo array and a lineup and she never identified him as the person who killed her three years later donna watkins was rushed to trial the state's discovery to the defense listed melissa w as a crime she was ten at the time of the trial and it's the three year gap more than anything that is the necessary fact also she was certain she wasn't three or four she was o yes but at the time of the crime she was asked to identify donna watkins from the photographic array and from the lineup and she did not pick them out from either the lineup or the iraq and what are we to make of it that she didn't see the person who killed alfred currie in the photographic array on the line that's what i would argue three years later this month as we're aware there is no intervening attempt and i don't have a cation three years later they go to trial and she know what melissa was going to testify at trial and that the state just like the jury would first hear it when she takes the witness i'm glad you brought that up your honor i think that the notion that there might be an identification consistent with spontaneity given the state's opening or i don't believe that there is any notion as far as the available from the record it's clear that the state was intending to ask was what was said w to identify the person who killed alfred curry regardless of what the state and if we accept  he was planning on asking her to pass title blackens but he just wasn't sure what she was going to say now i think that the preparation of the witness prior to trial and the interaction of the defense attorney walked in on it attorney never asked the young girl the question of whether she could identify the individual and that that question would be first asked when she was that the stand when she took the stand the question is whether there was a likelihood that that such a question would be asking that seems absolutely certain and then the question becomes whether it's a likelihood that she would answer yes and there's really only two answers that c given yes or no and given the question it seems that yes might be the answer and so i don't think there was any lying by the state's attorney because he may never and i accept the fact that he never asked her directly who you are you able to identify saying here is the individual that was in the bedroom that night and absent asking her that question during the trial preparations there's no way he could possibly miss representation because of the work cannot be anything of the the answer was going to be it was spanking as ect that's correct i don't believe that he knew she would say yes but he knew that he would ask for that in the hours that question na y specifically he said i believe he said when you will that who did you see in the room the question who did you see in the room is that sort of lends itself to anything other than an identification a does that suggest an identification should be made or would be m i think that there's no question that he was asking her to say that wasn't asked did you see anyone in the room the question was asked who did you see in the room and if you take a look at the dictionary who is which person or  her specifically will you identify dog walker and i think that there's no question he was intending to ask her and that he had a strong but he was attending to ask her to identify somebody heat he said in his opening i don't know what control and to the extent that control me that information will be elicited by virtue of the question asked of the witness i understand even though that question may not have been asked very pretrial preparations for whatever it's certainly within the state's control by virtue of the question and then i get a patient would ensue isn't that an accurate statement doesn't that fall within the obligations of for twelve to the extent before twelve requires the state to disclose there was no part in the cases and you yourself posted it and said the state's attorney did not know what she was going to say your honor what i said was the state's attorney claimed that he did not know you know you didn't say that and that there  nothing in the record to indicate that he knew definitively the fact that he chose as a strategy not to ask her specifically toward before trial the question that he then asked for a trial doesn't mean that he he didn't know what was going to what she would say his opening statement where he said i don't know what she will say i know what she said before her but in this setting i don't know what she will set well all find out together  this situation i believe that he had a duty to disclose to the defense specially in this situation because it was an inherently unreliable identification and they would have filed a motion to suppress the identification there would have been a full hearing where they would have gone through all of the factors and the factors just don't hold up the dog and she what we know from the record is that she never identified him prior to trial before trial she says spankie sitting over there and then so we know that she knows where he's sitting this is a little girl who was the victim of a terrible crime and understandably wants somebody to pay and i don't blame her in the least for pointing to donald wat but that doesn't mean that she remembered him as the person who killed off her and that's ultimately the question was this a reliable identification and it was it and if the state had upheld their burden and disclosed the defense what they were going to be doing to the perpetrators face her description of the defendant is simply of clothing to the police at that time she doesn't identify him in the photographic array or the lineup she said during her testimony that she fired she knew him because he might have come by a week only witness who would id donald watkins when the state determined that they would ask melissa a witness who had previously not identified on the walk of choice jennifer the person who killed alfred currie they had an obligation to inform the defendant because they were adding the possibility of i believe in this case that these are grounds for a new trial lewis and many of the case they cite there is no even attempt at a pretrial education in this case there are two pretrial indications that where there is no positive identification also there is the intervening factor of the entire interaction the state melissa's testimony was unreliable and that in her side this is the state's case may on the basis of lucius testimony which i did not it's been repeatedly suggested that the and brought out that the little girl melissa did not make an identification after the after the crime but let's remember she's a seven year old girl she's asleep in a bed and where did that all that information that you put forth which way does that cut well i think i think quite in favor of identification three years later sure where does it say that maybe to the extent that there was going to be a  this little girl as in m m for the six text of jake of says that when she couldn't identify anybody she was withdrawn and in shock i mean this is within hours of seeing a man's head literally blown off we use that expression sometimes but full faculties the pill to her or in the event that everything is continuing as she experienced it at the time of the crime why not do it all over again a month later two months later w i wait three years well first of all as a practical matter we had the evidence of her lisha which she testified that she knew that she knew this person she didn't to fight him he did have  tattoo ironically that had the speeding nickname which give the police there was enough to indict this defendant at that point we can't have a photo or ray after that point once he's indicted we can't have a lineup unless they're going to agree to it and dad in and of itself raises other questions that were prohibited from doing some of those things you know some extent that's that's an argument that says thank goodness because procedures occur but where is the independent basis that can be absent at that time when the photo raises this play or when the light up occurs and reappears three years later at a time well first of all she's not identification are following something suggestive by the state the opposite occurred here there was no suggestion by the state there was a there was a lack of an identification all those cases come up in the context of some suggesti suggestive identification and the reason i put the south park carolina supreme court case in there is to talk about when you have just purely an import identification of those neal versus bigger specters don't apply they have nothing to do with this issue it's two separate things they talk about wanting to have a hearing on what basis did this south carolina court rely on the independent basis for the identification in court which i've seen must exist and must be an independent pryor felt that there should be such an examination and that was really the prejudice that to the extent the defendant suffered any it was his his the the lack of opportunity to challenge in the course of the pretrial challenge what challenge and identification they had that opportunity through cross examination an argument like the seventh circuit a setting like the supreme court of south carolina and all those other cases sudden that's your way to challenge it not through pretrial are you rule doesn't say anything close to that report of the rule at length in the brief talk about witnesses you intend to call together with their relevant written record of statements memorandum specially containing containing substantially bourbon reports of their all statements etc etc and control identification based on whatever course of preparation there's been but never that question asked of that person and that it's ok to do that to to in fact put the that that happened all we have is the colloquy which is admittedly somewhat difficult to follow at times in the reason it's difficult to follow and the reason that the state's attorney made the statement that he made in opening statements is this is a ten year old girl and in fact i've done the same thing you get a little girl that is special in a sex case you don't know whether they're going to say anything at all he may have been preparing for the fact that she get on the stand and say nothing and we've all seen cases and i've tried cases where the little girl gets on the stand and resists that was an equally likely possibility in this case especially looking at how with what happened when she was cross examined certain i don't know how you can reject a factual finding of a judge saying that in his opinion it appeared to be a spontaneous response i don't think there's anything in the law or the record that would allow you to do that  defense counsel mentions the fact that melissa was the victim of a horrible crime wants someone to pay there's no evidence to back her she doesn't even know alice last name she was a visitor in the house she she she has no ax to grind here provides for but we didn't know apparently based on this record what this this little girl was going to say so that there's nothing in the rule that says you have to ask you have to tell them the questions you're asking what might what might happen if you have to give over information that you have that exists already you have to give over information about what experts are going to testify to if you know the witness is going to say something different than what the witnesses said before you have t the question was who did you see and it was brought up earlier that that led to necessarily one answer that's not necessarily true she could just as easily said a man with a gun she could have said nothing she could have said i saw als and he didn't have mean you could certainly argue that that that's what what he meant and the crucial thing here though is is that even even if it were a discovery violation what would have been different what about emotional appeal what if what if the state had disclosed that she it will be asked the question whether she can identify the individual in the defense files emotional or many seeking to bar such testimony based on the lack of identification  never seen such a hearing held i've never seen such a hearing held and again maybe there's one out there but but the it's based on suggestive i d s is how they come up if you'd asked for an independent basis here and she would have said i was in the room if she was what  e said trial and then i do a question regarding that's connected to that because the entire identification i think falls it stands on the point when we say it takes office and that occurs after the shot is fired yes and that and after the shot is fired my recollection and maybe i'm but that the little girl goes under the  hide or to to you know gain that security that she gained by being in the field position and you think of that sort and in fact i'm not even sure we're the assailant was in the adult witness was when the the mass i think there's two different things there's two different incidents where the mass comes up she says that she wakes up after a boom and then there's in the guest so we don't know if the boom is the back door being kicked in or the gunshot having but she says she wakes up to a gunshot that she also calls the thing that is holding a gunshot so that's that's kind of difficult but there is a subsequent things after the defendant goes in and shoots the victim at which time he takes office mass till she can see him he also goes then into the living room that's  remember he brings mom back into the into the bedroom and shows her what he's done says you're going to be next and then at some point his mask comes off at that point and she recognizes him is speedy and she knows she seen him she knows where he lives you know the general area is the description he doesn't fact have a speedy tattoo so i think there's two different times where the mask was up or off or at least that his face was visible i don't think it necessarily is this is the same time because he has to leave the room go to the living room and bring the mother back into the role so at that point the little girl's hiding it with the covers on the better she's just cowering in fear understandably so  record shows that i don't know what it means i think it's very dangerous to get into anything just discussed you know what the jury is doing in the back room and putting a time element on it because ultimately as i was saying if we find out they were out for half an hour does that mean that there's we're not going to talk about this on appeal no no hopping but at the risk case there is at least one case with that i'm sure you're familiar with it as well the supreme court making the observation that when the jury is down that indicate that's certainly a factor in favor of calling the case a closed group there is case law to get and i think that's that's a major mistake on the part of how you could tell that the supreme court statement that it would be dangerous to rely on in proof you have to look at the facts of the case to determine whether it's a closed case not what the jury was doing not you know if it's eleven to two because they're to hold out because they want to spend our lives or tell god and that rule  of testimony versus the number of hours of liberation i think these are all of the i mean i mean are there are cases where the jury wants to spend a night at the hotel and so they you know they come back the next day i mean who knows what they're thinking half the time you know it could be eleven but of course juries tend not to sound not because they're deep in the process of deliberate up because they're looking for guidance or they're looking they're at a point where they don't feel like they have a light at the end of the photo is that what happened yet and they also signed to a jury verdicts finding the defendant guilty beyond a reasonable doubt unanimously and based on the evidence and then that's always the case that in every case that comes before us isn't a true i mean every case that isn't a short circuit absolutely so all we know for sure is that they found him guilty beyond a reasonable doubt then the rest of it is speculation and even a no coming out of speculation could it just be they could just be now the judge isn't responding to speculate reasoning but speculating zack what's going on in that room is is is dangerous for for all of us i would search your house for the for the reasons that we stayed in the briefs and again i would say i would state that if we do not believe that there was a discovery violation that took place at all here even if there had been a discovery violation the fact of the matter remains that nothing would have changed the result would have been the same there was an independent basis in this case even though there was no pretrial suggestion that the opposite and nothing the state's attorney's did in this case with regard to that witness was improper this is the way  all child witnesses are prepared for trial and in fact usually they're brought in several times to court to go through their testimony and the fact that we don't know what the with this is going to say is a very  common occurrence when you're dealing with a child with us you really don't know until that little girl little boy gets on the stand what it is they're going to say with all this recent us that you're from the bennett's convictions repeated there there was nothing suggested by the state or were goddess of what may have gone on in the courtroom pretrial and while understanding that it is normal to prep especially child witnesses in the courtroom we know that as a result of whatever happened in the courtroom prior to trial that the child was a w specifically said to the defense attorney your spankie is attorney you were sitting over there and then at trial she said when asked who did you see she said  that is very troubling because we don't know that there's an independent origin for the i d and the other thing that i would like to bring to to your attention is the only supreme court's case people versus retouch where they say we are  concerned with whether an independent origin exists to establish separate reliability for in court identification and in this case if they had held a hearing prior to trial they there would have been no separate  was no independent origin for it if so are you familiar with those types of because of the particular circumstances surrounding this witness and the crime there shouldn't be arraigned they would have determined that the id was unreliable there was no independent and then melissa would not have been able to identify