going to say that no three other people shot him first and then he shot that just seems i mean if i were the lawyer trying case i wouldn't put that person on to say my clients actually l guy i mean that's simply ridiculous that you couldn't put forth evidence to support your client's account that other people had guns and he fired in self defense yeah can i hear what you're saying but i'm trying to put myself in the position of the defense lawyer i have a client who is the person who is supposedly having all these people commenting i can't imagine my client not knowing if he fired first or three other people what my client simply because simply because the test was different doesn't mean that it's possible mr neeld himself was the one who had to correct a count but even if it missed davis was incorrect about the order of shots that would still support best our best solution in these cases i would take this to a third stage evidentiary hearing and all that we could call counsel you could ask household of these things we could call separate witnesses and any inconsistency it would be resolved in i do not have a case in front of me about that but i welcome the test because there is no such case the pca say also with documents and under the legislative language you should be allowed to proceed calling evidence tending to show that there were other gone's in the area at the time of this murder is ridiculous the people's position is just that is that if this quote provides the relief that the defense requesting in this case then we're essentially saying that trial counsel is in effect if you're presenting a defense that literally came from the horse's mouth april davis it is affidavit contradicts the testimony that was offered by the defendant at trial trial counsel should not be found to be and a fact that an defendant should not get a third stage hearing or finding that there was a substantial showing of ineffective assistance when the defense presented in this case was the defense that the defendant himself set for we all know what the standard is at the second stage of post post conviction review  just the defend them that these witnesses would have testified to this and that of of were you the moment then the order of the shooting i mean you were talking we're talking about mob action things happening in a rapid fashion and a lot of you know almost fifty people swirling around course it's going to be some confusion going on so this is what's significant here the fact that it was respectfully disagree with that proposition because the defendant asked if i was that he was in the crowd that there were people with sticks and poles and box cutters that he saw someone lift his shirt and he  and it specifically says that he fired four shots before any gun was drawn he then indicates that he fired at least ten more shots one stack on which time and then he said as that there was he was running away and there was shooting involved april davis completely contradicts that it will say this is a affidavit affidavit explicitly state that defendant never shot anyone until three men started shooting at him that's a complete contradiction and you know oh is that a contradiction defendant didn't say that he shot everybody you said that there were four shots and then ten shot so how is that a contradiction because who paypal's testimony because the defendant specifically says that nobody drew a weapon on him before he started shooting he testified at trial that he began shooting once a person in the crowd lifted his shirt and there was a gun in his waistband yes he knew that he specifically to have to fight that there was no one drew on him before he started shooting yes april davis in turn size in her affidavit that three men were shooting at defendant before he ever drew his gun and started shooting that's a clear contradiction or rather also there's other things in her affidavit that are contradictory her example at trial the defendant testifies that april davi barbecue with him and some other people were there too but when he's talking about the scene where the shooting takes place he says that the woman who was standing next to him was the key of the key here is the girl who's initially involved in the altercation with not that starts this whole ball rolling april testifies i'm sorry that testifies april puts in her affidavit that she was standing right next to defendant at the time that the shooting took place but although define it mentions a pro and his trial testimony he never indicates that she was anywhere near him at the time that the shooting occurred he says that nikita was the person standing right next to him and that he was afraid for nikita so that's another above that was going on well i think that that feasible it's interesting to me that in april eighth affidavit she physically status that she was standing right next to the five right next is a quote from h affidavit and your honor at the second stage of post conviction review it's not inappropriate for this court to consider trial strategy it's the standard size that this court can't make ability determinations on review  can consider trial strategies so let's look at april davis and what her testimony would have shown in her rape david she says that she's defendants brothers fiance she says that she's nicky your sister  counsel was presented with a witness who based on her affidavit was going to provide testimony that didn't comport with the testimony that the defendant himself intended it has to testified to at trial and she was also a witness that the jury could have very likely found incredible and later her connections to define it and his family i'm all their testimony presumably would have come out at trial this court is not required to ignore considerations of post conviction review considerations of trial strategy are appropriate we're not asking this court to consider whether or not april's testimony would have been credible to a jury but trial counsel at the second stage is entitled to a presumption of competence and considerations of whether his trip to the trial strategy was reasonable and it's the people's position that in this case most certainly trial counsel had good reason people would submit as just discord and pointed out that if there was a shoot out in the crowd there were sixteen shell casings recover the defendant testifies their trial specifically that he was shooting a nine millimeter handgun  he accounts for fourteen shots at a minimum he says he shot four times before anybody injured right him and then he shot at least ten more times the physical i've been into a child demonstrates that there were sixteen shell casings recovered at the scene they were all fired from the same weapon and they were fired from a nine millimeter handgun that negates defendant's position and most certainly april's position that there were three different shooters also your honor counsel what about your opposing counsel i'm thank you also i'd like to point out there's another piece of evidence that came in at trial that this court speak had to sit up and they had is that there was a patrol officer on the scene at the time about a police officer who is present on the scene within ten to fifteen seconds back that information rebuffs aprils claim and frankly defendant's claim that there was a shoot out here also in addition to those factors it it's difficult to believe that if there were sticks bats and poles and box cutters nothing was dropped while people were running and there's no evidence of that anywhere here so and some the people's position is that april's affidavit fails and to base this one because it contradicts what came out of again the horse's mouth at trial and two because it is rebutted by the record what about the other witnesses with respect to show landon jimmy again i'd just like to point out that the information that's attached to the defendants amended post conviction petition s just that attacks certainly this would be records or other evidence supporting the allegations your honor it would be the people's position  found to be sufficient under the post conviction herring act but assuming for the sake of argument that this court were to find that they were sufficient in this case do you have a case of saying that they were them sufficient no your honor well do you know of a case that a lot of police report into evidence into evidence or trial you know your honor i can't cite a case off the top of my had but i would i would venture a guess that it maybe it's of what these witnesses were going to say was that there was a male and a female shooting and that the female was actually assisting the defendant she was in a shoot out with to find if she was there with defendant shooting with him they were on the s gnat sister and that is the person who was initially in the argument with nicaea that starts this whole melee in the parking lot it's very difficult to believe that's a lie i'm just going to get on the witness stand and provide any kind of testimony that's beneficial to the defense in this case the other witness is jimmy jimmy is also related to the back side of the team and jimmy gets shot during this process he doesn't get injured he he refuses treatment but jimmy is one of the people who's getting shot by these people so the chances of jimmy providing positive testimony for the defiance are also slim it was reasonable trial strategy for trial counsel to avoid calling this witnesses and instead of trying to get in the information that these witnesses provided through cross examination of the detective who was on the stand in this case that was a reasonable trial tactic it's insufficient to proceed to the third stage  again your honor and closing we just the people would like to point out that providing relief in this case made the statement that trial counsel that you can make a substantial showing of ineffective assistance of trial mindful that it's appropriate to consider trial strategy and counsels overall performance in this case and if you make those considerations it's clear that there is not a substantial showing that defendants constitutional rights the effective assistance of counsel was there would be unwillingly to provide favorable testimony that's an unfair assumption first stage we're supposed to take that well but facts it's true rather significant that the state is arguing that we should take the defense from the horse's mouth we can to his client i mean what is significant is that there were other gun again as justice hall mentioned simply because nicaea was next to him does not mean that it was not those two are sisters it's not a stranger so i'm sure it's not strange they would be the both there  and simply there's going to be inconsistent testimony and we shouldn't let that preclude consideration of mr neal's claim i mean this is a case where shortly afterwards a bike broke through a window of a prime living room and a house of one of the witnesses to start a fire this was truly a chaotic experience the state wants conviction and it's a testimony about the number of shots fired and how the crowd came together