so we appreciate your participating in this exercise this morning there is a rd member of the panel of course justice will also be working on that decision in this  case we are recording this and so he will be listening to the recording and will be participating with us in that decision mr gable are you ready to start yes your honor in that boat shit are you that they are the biological daughter as well as his ex wife patty would provide testimony to crop rape testimony and they are testifying about her own abuse for defense at the trial however the state did not defense and also argued that there were many other witnesses that could have corroborated any of the allegations including patti the ex wife of the defendant and the mother of one of the complaining witnesses the state however said that if those they one of not being presented and did not open the door for the state to be able to argue that they could have subpoenaed them secondly these witnesses were not equally accessible to their think the defense a are although she was the defendant's biological daughter was listed in the state's own motion propensity evidence that she was a victim of it if that she was also the sister of one of the complaining witness as for k w s wife she is the wife of one of the complaining witnesses and there was testimony that the defendant would not allow her in his house because he didn't approve of her sexual orientation and as for past  improper definition of hearsay it does not include if you're say something that outside of court offered to prove the truth for that matter and as in shown in our brief that testimony would not have been here say in particular with later on the state could have had her testify as a prior consistent statement so that was not hearsay evidence and finally anything that has been so new about this this was an attack on the fact that he was making arguments closing arguments and it implies that the state had valid evidence that it just wasn't allowed to present because of the hearsay rule these issues were all prejudicial because there was not operation more sorry able to hear me out i apologize yes there was our judicial because the only evidence at the trial were the two complaining witnesses there was no complaining witness k w without objection testified that she was not having sex with anyone except for the defendant that she thought she was pregnant and nad she tried to write it see by punching herself in the stomach prior to trial the state filed a motion for some to the rape shield to keep out any mention of sexual history the defense that however during the trial the state elicited from her that she believed that she was pregnant now the state did not specifically ask her who or i was for you having relationship say when you find out you're pregnant why did you go to your father and she replied because i wasn't having sex with anyone else in this information was completely irrelevant if stated already gotten from the witness the timeframe and the age of the complaining witness because after the st incident she remembered how old she was what class she was in what she was wearing so there was no need to get any information about all this extra prejudicial information to show any sort of crime like this was highly prejudicial and there was no reason for the defense counsel not to object from it and the state then even mentioned it's so unusual closing arguments that she thought she was pregnant or times and with that i will invite any questions from the appropriate for defense counsel to make the statements in closing and so you saying that when you make that kind of a statement it doesn't allow for the state then to come back and with an explanation of why these two men didn't appear or is it the error that can be presumed invited about in accuracy if any about the hearsay many definition it would be to both your honor the st it would not be invited because it's specifically to a r and b abuse wife those witnesses were not equally accessible to the defense so if there were witnesses that either party could have these three got into court then it it may have open the door and be invited response were these are clearly state witnesses going to the control of the state and they mentioned them throughout the trial and with patty she's mentioning the state's opening arguments i don't believe the state can then not all those witnesses and be able to say oh well the defense expert the nd issue with the hearsay i don't think i was an invited at all especially if it was an improper definition of hearsay and they tried to say that that's why i didn't call these witnesses because it was hearsay and i don't believe that is invited at all s i know that defense counsel didn't object to that to the statements when they were initially made because that and that of closing arguments so at that point do we have to look to whether or not  objection from defense counsel when they made comments about the hearsay it's a little difficult to separate those two out but as we noted in the brief even if that objection in the shifting but did not mention anything about the hearsay thank you mr gamble was there a jury instruction given on hearsay was not your honor so there was never any correction and the biggest yet that is my understanding revealing that there was no hearsay instruction to the jury was left with the definition provided by the  what was the was there anything improper about the defense counsel's argument was that there they were being attacked and therefore it was ok for her to say things that she said with regard to whether whether or not he subpoena they could try to counteract it different ways but not by trying to shift the burden by saying they could bring these witnesses it or are there any other motion so he cannot now claim effective assistance for failing to do so the prosecutor do not ridicule opposing counsel or claim defend it was obligated to present any evidence therefore the prosecutor prosecutor's remark was made in response to dense defense counsel's claims and it did not substantially prejudiced in closing defense counsel repeatedly reminded the jury that no burned presidents and the burden was on stated there is no requirement that every witness listed in the people's discovery must be called in the decision to call a potential witness is a matter trial strategy subject to the up to the minute assistance of counsel call defendant could have called anyone listed as a potential witness prosecution witness that is to testify for the defense also they were all no no one to defend it and they were equally available to the defense most starting when she was alone or twelve and in the th grade and up until she told him to stop when she was seventeen so there's about a five year period and then has also testified to a lot of events of him inserting fingers into between the victim and the defendant and a nd is that the evidence is constitutionally required and that it would make a meaningful contributions trial then has not been cited in any part of the record showing people who were defense counsel listed w replied because i wasn't having sex with anyone else this evidence was relevant as corresponded to him he's testimony that defendant did not use a condom it was not part where was evidence  theory the prosecutor argued in closing the evidence of the suspected pregnancy in or started punching showed she was credible but the prosecutor also no detail he claimed in two thousand and nine that the sex was not happening l you argue that the evidence isn't closely balanced where we have for lack of a better term he said she said type of testimony is it is are or how did how exactly is it that you know there is no physical evidence or anything that we can say this is you know meets the legal definition of being closely b counsel's own arguments and cross examination trying to prove their no credible there was nothing presented at trial to diminish their credibility so in that sense there was no it was not closely balanced it was not diminishing that their credibility the testimony that they had denied it is for in the course of an investigation by the police and here are but that's why the terms of the expert was presented to show that in general they didn't speak to the two these two victims but in general sexual abuse victims often deny the allegations ever happened and later we'll admit in this case kato you consistently said that she still had her her father still cared for and she stayed with him you know in different times after the abuse and frequently in my experience in cases that i have handled in in life experiences that they obviously can't bring into the strop there this case but in prior cases that this court has handled there have been similar incidents were a sexual abuse victim will deny that especially where it's a family member or a close family member like a parent or an own goal or other sister something on those lines where they were initially denied that to protect that person and in this case he even said she was trying to take the abuse so speak to protect some of the younger sisters from defend but in turn in terms of the legal standard corroborating whether it's physical evidence or several eyewitnesses to say this is what happened you know if they're not if they're testifying about different accounts that may have happened to each of y happens to that effect i mean is that sufficient corroboration is that what we're looking for i you know i just really struggle with you know that you know the legal definition of you know not closely balanced because we you know two people testify and they're an expert says that we should you know say it's not at all unlikely that they would have not told the truth of you know in an earlier investigation but i really thought the standard was we you know when we're looking at whether or not  evidence is closely balance in these cases we in order to make that determination we have to determine well was there other corroborating evidence that was presented and what do we have that here  these individuals no there is not corroboration hand under the caseload especially sexual assault cases where this is a private thing that happens or nobody else around and often the so the physical evidence corroboration is typically not available it is great when it is because it backs of course the the victim's testimony but this late many other cases there is no physical evidence to error don't don't get me wrong i'm i'm talking about you know if if we were to say that you know there's there's been an  and if we have to make a determination of whether or not you know it's plain error with this is you know me to you know this evidence is not closely balance or closely in the st case the prosecutor was responding directly to attacks on why the the prosecution didn't put on especially a are other testimony such as petty statistics mother one but she had no direct all she could have said and probably would have been hearsay objection of course counsel as has stated in reply brief that there would be it would be allowed under hearsay exceptions but that that was not the term to trial because was no no objection there was an objection but the the definition of hearsay didn't affect the outcome of this trial it was  no this did not affect the outcome of the trial and you don't know you don't know what the jury focus and saw him when they were arrived at susan of course nobody ever know absolutely but there is no  interview them so she she never talked to them and that the sum total of her testimony was that a lot of times people don't report at the time is that correct well as the  was for only two to discuss why you her of these victims would have delayed or even in this case why they would have denied initially and then reported later why they might yes as was admitted to trial on it and we certainly don't dispute that this expert did not interview or to testify and at times and so she could not testify witnesses and they don't have to call them we're not arguing that state must call every witness that was just there are keep witnesses that are not equally accessible to the defense they can't dance comex on the defense not call perfectly reasonable comment by defense counsel to know and then just finally be ineffective assistance the state is arguing that it was an error in the closing however  recollection that the state's closing talked about k w feet pregnant for a time and defense counsel its argument was in part in response to that and that it was not invited error suggesting that the purpose of talking about the witnesses that were called was somehow to suggest that the prosecutor may have had some obligation to call those people is it not an argument that the state really did not make its case that it didn't witnesses available and didn't call them and that basically this was an argument that's the state didn't make its case  proving that that the defendant was guilty of this and that they didn't make their case because they didn't call witnesses who were available to buttress the was presented and that therefore the state did not meet its burden so this is is there an argument that the state was obligated to call those people because it notice them and said that they were going to call them or is it an argument that the state had these theoretically corroborating witnesses and because they didn't call them they did not make their case yet our position is not that the state is required because many it says they can present their case how they wish they still have their burden however if they choose not to call businesses that are under their control it is perfectly reasonable for the defense counsel to comment on that and it is compounds the error for the state to give it correct just be asians why they of but we do appreciate as i said before your participation in this st experience for us we will take the matter under advisement justice will be listening to the recording and also participating in the decision so thank you very much