face trial that were contradicted by statements in two prior recorded conversations she had the trial where it was ultimately on able to hear these contradictions because of actually she says it's at this what she said she saw that this is the measure of peace yes part when you listen to recordings she tells the officer she saw it somewhere else and he said well could have been here with me here she said maybe at the end of the recording she's talking after but that that she heard something and then after they drove away and left the scene her friends get tama tells her it was a handgun drop so it's not just the mix up of where this parking inferences are enough if she was cross examined about her statement regarding respondent dropping the ball with me then picked up by her attention was directed to the video where during the first drop apparently there's only one person dropping something out and she's confronted with the consistency later this is all testimony for the trial of where that's cracked so so it comes out where is it that metro p c s very much video so she's told him it's at the second part of the red and blue and he's trying to get her to say maybe it was a measure of peace yes he shows her the tape here's the tape up to a specific moment where he thinks maybe this bends down in a moment that's all you can make out from the tape he asked her could it have been here and she says oh i never noticed that maybe maybe it could have going on during this discussion that he's pressing it could it have been there but that about where it happened that's where that's in the first parking lot metro b c s at the very least she's changed her story which i think is something the finer faction of hurt and also i think there is an inference here that her story might not be beyond where it happened it might not be that credible us whether she saw it at all that's just the first major inconsistency so i want to move on to go to which both involve money the second inconsistency as i characterize it to trieste repeatedly denied in her testimony that the police had even offered her additional funds and that the quotation of what she denied was quote that there were some there were was some other funding available for you possibly she deny that but then in the reporting this is a response it's a bit long with officer johnson officer johnson told her that she did that he had quote the capability of getting you some money on the side and quote but that she had to keep that quiet so to trieste denies the offer being made to defense counsel and to the prosecutor and then the prosecutor is uncomfortable with that's the point where he she makes an offer proof to the court to say there was some off why is that collateral that's off that's for her providing other information at later times on other ma he he mentions this as an aside during a discussion of trying to make sure she goes from meeting him to go to meet detective so it's he's saying you need to go into take a day and then he paused for a moment says also if you get into any other trouble as she was offered additional financial incentives to testify that was totally untrue that's true that is that when they went back after the denial of them of the motion my understanding is that is wh requestion her and so i haven't really relied on those questions on that i'm talking about prior to the question but i would agree that's that's sort of a mischaracterization of what's happened here the third major inconsistency which also involves money is that the trees testify that her cooperation was not by this is a paraphrase was not motivated by receiving a warning at the traffic stop rather than thousands of dollars in tickets she says that that's that's not the reason why i cooperated essentially but officer johnson told her on the recording response exhibit one that if he heard she did not cooperate you could still issue has tickets later that's this is maybe the most troubling thing on cross examination she admitted credibility of the first in a court to say that it found the trees to trieste quote testimony didn't appear made up rehearsed and the court also believes that the officers not writing for tickets at the traffic stop doesn't affect the testimony and here's the key part the trees after johnson if you don't do this i can still issue states it's not he's not doing this oh goodness of his heart at least he's not telling that he's he's giving her a break but saying if i if i don't hear from d he also failed to lay an adequate foundation either the timely date and location of the statements for purposes pietschmann or also for subset of impeachment subsume purposes of the stache true basis that the recordings were to recall these officers so those things in the happen here and they should have and i think one of the key points to that we know that this was not trial strategy because this was what trial counsel was trying to do is the main point of contention between between scott and the state is whether this extra language do you have what part do you not have what part is that in your services or is that an element that has to be satisfied here in the reply brief i because the he had failed to show that they were inconsistent there was no claim raised or made or no ruling based upon the on appeal he says the sh prove that was accurately recorded in all the funding that was simply not the basis for the court's ruling and providing that foundation would have changed nothing so that that foundation as far as the accuracy of the recording or anything of that nature simply cannot establish in a or defective course case because the truck or truly was that this was not inconsistent simply if she provided there's a possibility she could get other moneys if she provided other information other cases that has absolutely nothing to do with this case and impeachment on that matter police officer is a phone conversation on a side note you know so so this is absolutely irrelevant to anything in the case of that the favors of this information about the other money cannot establish ineffective assistance because he simply put not have gotten it in in any way shape or form it's not an inconsistent statements because she was her test we wish i was not offered other financial  testify that is not inconsistent with the offer for other money for other if we ration in the future there's no consistency there it cannot be brought into stablished bias because it gives and it wasn't offered identified a photograph of a photo her as being similar to the gun that she saw on that occasion presenting these statements to the jury would have allowed the tape recordings also because contained a very highly prejudicial information that was not developed as fully in a trial namely the discussions in the car  but having given him the wrong name the first in the second statement she repeated least says i forget how many times that she saw him with the gun and giving it to  his case if they if they come in that was the strategy was to get them in you have to reconcile those two positions now the state makes the point under deficient performance that this is the argument that we're making is not basis on which the court ultimately rejected the admission of these three workers and that's correct but i think delving into what the court how the court decided that it's actually important because the court made a mistake court rejected the idea that future future knowledge and i think that it did but she denied that the offer was made and the court didn't remember that that denial of occurred so the fact that it's in the record that that testimony heard it was before the court is actually not as important as we might think because the court didn't remember it happening and that was the basis for the rule that the state says that well that was the basis for the ruling you can't argue about sullivan's this court can affirm only basis and so if the court had ruled on that basis it could have equally ruled on the basis that this was officer johnson statement about the teresa's prior statement so you can't bring it in that way you could rule that the foundation has been laid and this court affirmed on any of those bases so we're prevented from arguing the court area here because there were alternative bases and defense counsel was ineffective provided official performance by not properly presented so that's that's the way we're able to make this argument now back to prejudice the state i think this a it's clear this was a close case and we can see that in the courts all to hear you talking about patrice credibility that there were some inconsistencies here but ultimately the court found her credible and that swung the case whether she was credible or not  provided the outcome just the physical set up i want to talk about the moment and that's your view where she allegedly sees scott drop a gun behind her while she's sitting in the driver's seat of her s u v and he's standing between the open rear driver side door the door behind her he's standing between that open door and the body because from the pole camera video we can see from across the street we're looking at the driver side of the car so all you can see is an open door and this is a ways away it's you know open door and someone's feet below the door and then that person bends down for a moment that's the moment you talk to texas they could have been right here and she says open door blocking any view she might have had in the rear left through here it's it's not necessarily every possible scenario that she can see through her seat back that she can see through this  what's happening so the statement in response exhibit two that she ultimately says we've heard it drop something drop while discussing this dispute where it happened i think is is important here