please the court under justices counsel for the people the comments that i will make this morning will primarily have to do with arguments that the trial court erred in finding that the evidence in this case the largely circumstantial was sufficient to establish the defendant's guilt beyond a reasonable doubt it is my position that the record does not reveal evidence that would reasonably support a finding of guilt i respectfully contend to you that a careful review of the evidence contained in the record coupled with the newly discovered evidence in the term of admissions by the child's mother and the in effect in this of the trial counsel have created a scenario that clearly leads to the conclusion that the defendant appellant isn't titled to some relief from this court before i begin my discussion of the evidence in the record i would state to this court that i have reviewed the authority submitted by the state and in particular the pencil's case cited in their motion to add authority that i believe was filed with the clerk just over a week ago and i do concede that the proper standard in a criminal trial is the reasonable doubt test and not the reasonable hypothesis of innocence standard that we had earlier advanced you that this clarification of the standard in any way takes away from the merits of the defendant appellants arguments as a review of the evidence in the record in this case clearly show this is a case where i was not trial counsel we were hired after a verdict of guilty was rendered a case where regrettably an eighteen year old child lost his life my client america porter was convicted conclusion of the bench trial before the on the judge richard changed and will county the defense of first degree murder the trial judge and rendering his verdict set forth that there were two issues the first was did the defendant cause the injuries that killed the minor child and the second was whether or not he defended the pole and had the requisite mental states either intent or knowledge so that he could be found guilty appropriately of first degree murder now there was no direct evidence no admissions by my client as to any specific act that caused the death of the child that was no witness testimony that established that he had done something that caused the death so what became very important of course was the medical testimony that is contained in the record dr starsky a pediatric specialists testified and he estimated the time of death to be at noon on october thirty first of two thousand and five plus or minus thirty minutes so we have a window according to the record the state's evidence of the time period between eleven thirty and twelve thirty the doctor awful testified to certain bruising on the neck and abdomen of the minor child and he indicated he observed some superficial skin haemorrhages that looked like a rash he indicated that this could be caused by incorrectly administered c p r the other medical testimony in the record that the court has before it is that of dr brian ologist who performed the autopsy the day after the death of the child in november first of two thousand and five he testified to bruising both the eyebrow on the cheek and a jolly fine right side of the neck right on the cheeks and eyelids and said that all the bruising was of similar coloration and his opinion was it was all recent within twenty four hours indicated that the particular was indication of strangulation he also indicated that internally that there was blood in the abdomen that he opined came from a least two blows and that there were healing rib fractures that were six to twelve weeks old his final conclusion was that the child died of blunt force trauma to the abdomen and that the injury was consistent with the child and becoming sleepy that crying could be expected from the pain in the abdomen but that the child would become unresponsive over a period of time he further opined that the injuries could have been caused by an adult female and it was possible for the child to a sustained the damaged that causes death and then to have been handed off to another adult without the second adult scene that anything had been done to the child now this is a fact driven case so keeping in mind the medical evidence we know also that the child's mother in the child child's mother being jimmy jackson had recently moved into the home with the defendant a poet and his mother and his sister reside through the testimony of the child's mother the testimony of the defendant appellant the testimony of the defendant of helots mother geraldine porter there are certain facts that are clearly borne out in the record the first one is that no one ever indicated that the defendant the pellets showed any evidence of anger a bad mood irritation or frustration of any sort on this day there was also secondly no one ever indicated that the defendant poet had any history of any abusive behavior toward the minor child in fact the mother the child described in her words were quote real good in the quote with the child thirdly there was no indication by anyone in the record that the defendant the public had any motive to injure the child the fourth point was that at all times when the defendant a poet was in the presence of the minor child on that day other adults were always in close proximity with a child that was just the defendant in the child together in the shower that's correct and i will just that but i can put the defendant in the child when the shower the context was he had gotten up a gotten into the shower the door to the bathroom was open everyone agreed on that the child was bought to him by the child's mother and the time frame where he is in the shower the child is in the shower with the fin a pellet is between for the ten minutes during this period of time it's also under budget in the record that the child's mother came and went out of the bathroom more than once and that there were no screams loud noises inappropriate things that occurred or were heard any way shape or form also during this period of time the defendant a poet received a phone call that all took place in this for the ten minute period now and when the child jordan first got into the shower there were no signs of any bruising on or any problem with the child right when he first got in the shower with the defendant that is what everyone has said but my argument in asking this court to consider what the record shows is that that is entirely consistent with the mother of the child having been the perpetrator of the offense because what we have is a situation where my client gets up gets into the shower the mother the child is back in the back room alone with the child the child is describe as screaming i believe the reason for that screaming was the child was being hurt at that time he subsequently becomes the child is brought to my client and certainly in that short period of time there would be no evidence of bruising that would have appeared yet so would not be unusual that everyone would describe that there was no marking one of the points that i think is extremely critical to realize here is that at the point when this child was handed to my client this was not a child that was a normal health there are a couple of clear indicators of that the first one is the rib fractures we have ri fractures that were six to twelve weeks old these are in no way tied to my clients however there is indication in the record of some of inappropriate behavior on behalf of the child's mother and part of the argument that we've set forth more fully in the briefing in reference to the ineffective assistance of trial counsel was his failure to call additional witnesses that would have established a pattern of abuse by the child's mother that would have been extremely relevant and the terminating what happened to this child there is no question that somebody in the home on that day did something to this child that caused his death i mean that's the cause of this is not about the ribs it's about these other things that's exactly right and that's certainly a very appropriate point however in looking at who it was that was responsible for this certainly one of the factors that the court can consider is if there is a sustained and proven history of abuse that has taken place as to the as to in this case when we're looking at the college standard what about the comments of the senate major the p afterwards the explanations how would that factor in under the current standard where he believed that the child might have choked on some shampoo it was one statement he went to the juliet police department and was interviewed for several hours made some inconsistent statements gave a variety of explanations of how the child might have been injured and their correct this and and certainly i could understand what the one point i think he said the child slipped he caught of the child around the neck with his hand yes and let me address that certainly in reference to the record in this case i mean my client didn't do him self any favors by the lengthy statement that he gets a plea and there's certainly things depending on how you view it that could be viewed as troubling however when you view the whole statements as a whole there are some things that are borne out the first thing is at no time after nine hours of extensive of and very heated at times perhaps examination by the police officers by not one not two but three different detectives who basically tag team them switched off over a period of time were he was under above the record he had received no sleep was on some medication at no time did he ever make any statements saying that he had ever talked to the child strangled the child punched the child anything of that nature if you look at his statements fairly what was happening is the only a police in investigating this case were one point i mean as far as what we see stepped on child stomach when the child slipped on again or and i will address that they formulated a theory of the case that focused on the defendant a polyp to the exclusion of everyone else they then bring him into for these extensive interviews and they tell him do you think your mother killed the child of course he didn't they ask him if he thought the mother of the child did and he didn't think that because he had no knowledge of what she had done in the room in the back so they then start telling him what the medical evidence is this these things happen to the child and what he starts to do is to discuss things where the child you know may have slipped and i may have caught in going through different things that i may have inadvertently stepped on the child when the child slipped but at no time he is consistent in the fact that he did not cause any damage to the child that nothing he would have done would have caused the child's death he's consistent in the fact that he did not choke the child did not punish the child not in the actions that caused the child's death but you do take responsibility he did in this sense he did in the sense that he was the one when he came home that went in and discovered basically the lifeless body of the child he then attempted to perform r to revive the child and i think a fair way to look at the statements that he made is that he took responsibility in the sense that he wished he could have done more in order to have helped the child at no point did he ever take responsibility from the standpoint of i performed an act which caused this child's death and mr bennett's is it your position that either he did not commit the crime  charged at all or if he did it was not and that is correct it would be our position that under the record that you have been unjust is that either he did not commit a crime at all and in fact the mother of the child was the perpetrator the offense or that the evidence in the record is insufficient to establish either a knowing or intentional act and his part that the worst case question of i do understand for limited time but i think in response to one of justice carter's questions it you indicated that there was no injury or sign of anything when jordan is taken into the shower the critical point of that is that that is what the path followed just said is the indicator that the child had been strangled so if we have a situation where the indication of strangulation has occurred prior to the child being handed to him in the shower therefore consistent with the mother of the child having struck and strangled the child in the back room handing them off to him and then the fact the strangulation is already occurred the doctor said the child would begin to become less over a period of time which is what happened but my client would have no knowledge of that because it occurred outside of his presence the child was crying and then stopped as he got into the shower and then was handed back one thing that's critical is when he gets done with this for the ten minutes in the shower he calls for the mother of the child to come there to bring him a towel someone who is just committed such an act in a for the timid time span is not going to call a witness into the bathroom so they could see what had just happened  when my client discovered the child he immediately called for his mother who's in the home who's a thirteen year registered nurse they took the child into the world they were attempting to perform c john there's testimony the records that he markings on the child at least some of them and this was a bench trial it was so there was no jury that is correct  standard relies upon the trier of fact to weigh the evidence to determine conflicts and resolve conflicts in the evidence and to make a determination of guilt statements there are things that we know specifically from the evidence that at the time that the mother of the child handed over the child to the defendant she testifies he was in fine health except for the bruise on his eyes and the little spot  direct testimony saying that the splotches cheaps testified she believed that they were the effects of and drinking orange juice apparently he would react to that there's no direct evidence saying that the splotches that she saw ut when she testifies she says i thought it happened from drinking like juice he would break out and he would drink orange juice but then like you guys told me sure i mean there is some testimony that she was told it wasn't a rash from drinking juice that it was because he had been strangled that is what she said well she said well then you guys told me this well it's her belief that versus what she's t again that's a conflict perhaps and the evidence is resolved by a dryer fact not only that even if she had the cause of death in this case it's not the strangulation it was blunt force trauma t abdomen that caused but if the if she's if there is strangulation present before the child as taken into the shower are you suggesting maybe she strangled them but she didn't administer the blood wa even if you accept that she's trying to i'm not that conceding that in any way our my argument is that the trial court have got to resolve all those conflicts of the habitants and did so mitchell the corner said one minute is sufficient time to inflict this ball he has no motive to do this people say in our brief that we don't have to show mo would you do this we don't know exactly you can speculate i just got in the shower now my girlfriend's brainwave this child to watch this trial is now becoming a very irritable and fussy as he says snaps bam make the child shut up know he's considering what's the motive i'm saying well we don't have to show motive we don't have to show what his is complete mental state is only that knowledge that hitting a child with that force would have caused great bodily harm or leading to death in this instance if the child is healthy as the mother testifies to and then  takes complete control of this child says hold good bring me this towel then what does he do it takes the child into his bedroom pushed the child in bed covers him when the mother goes to see him he says oh no no don't don't worry about him he's sleeping oh that's evidence that he knows something is wrong with this child now and if he did it now he tries now he leaves mother says well well let me see let me try to put a shirt on him no no you don't have to do that he's got to cover them the mother doesn't physically go near this child from the moment goes into the shower other than give the towel until the child ends up dead speed testifies that the tire of death is between twelve is round twelve plus or minus thirty minutes that's the time of death not such time of injury doctor and that likely or possibly occurred within one hour likely several hours he said in his own likely there would be with one one day so we still have the same time frame sure except daughters where you're including that the child was screaming within that window the one of the detectives came back in rebuttal and justify that the mother never said anything about the child screaming when he regarding the c p r about dr mitchell indicated that it would be possible but he also said it was usually would not produce enough pressure to cause statements regarding the interview with with the defendant nine hours of statements those were not all at once there were two interviews released with the defendant and the second  one he initiated a after the first one he has to all kind of have your phone number to the detective and then the next day he calls them up because he wanted to talk more he want to talk more as the says suggests it was probably to try and find out what the police knew because he knew that he was in trouble for those why because he did so since he's not addressed the other two issues will stand in our brief on those issues on which you have any specific questions thank you there was a very insightful comment made and reference to the fact that there was no evidence of any sort of reference to drinking or excuse there was evidence particularly of the fact that this h g existed at the time the child was passed off the state would and the reason why we believe that this is not a case where a rational trier of fact should have found  guilty is because other than some extrapolation of things from the defendant statement of which there are no specific emissions other than and saying that you know he feels responsible he could have done more that there's this extrapolation to speculation that maybe he snapped highly unlikely totally contradicts human nature that someone is going to snap and then call a witness into the bathroom what happened is the child is taken back into the room and at that point appears to go back to sleep which is consistent with dr mitchell would dr mitchell said would happen that the child would come unresponsive over period of time it's interesting that the mother did not know anything unusual about her child who had just gotten up going back to sleep and it is not the case that the mother had no contact with the child because what the state forgot to mention in the comments was that they left shortly thereafter and the mother went back into the home for a period of some time to get her keys it would have been alone with the child back in the room where they stayed so in addition to the period of time that existed before the shower there was a second period of time where she was alone with the child unlike the defendant who was never alone with the child other than this brief time in the shower and that only with people around including the child's mother coming in an the nine hours of statement were over a course of a couple of days with no sleep you know when the problems in this case is always around the fact finder who makes those it is judgements in and for us to reverse we have to find that those findings are so improbable on satisfactory that  that existed at the time when the child was handed to the defendant a pellet in the shower so it just defies all logic that the mother of the child would have strangled the child and then not been the one to administer the blow to the abdomen and so under that scenario with the clear science of the only evidence in the record as to when that existed and then her giving the lame excuse that i didn't think this happened from orange juice when there's no indication he was drinking or use that particular day and then of course he makes the comments all because you guys told me so it's a scenario where clearly the detectives in the case focused their investigation the defendant never properly looked at it and under the evidence you have cited testicle evidence that exists in the record it's such that the damage to the child took place choir to the child being handed off to my client in the shower and it was subsequent to that that everything happened that the child then became unresponsive went back sleep everything happened that was consistent with what the path ologist said would happen with the child having been damaged already and when you couple that with the fact that you have a history some evidence of history of abuse inappropriate behavior of the mother you have the fact you have ripped fracture six weeks old and have nothing to do with to defend that obviously something was happening with this child you have the evidence in the record such that it is clear that i believe that even under the collins standard that my client is entitled to some relief and this court should grant that in this record we have the there is no doubt the cause of i mean from the doctor's testimony here the cause of death was the domino blunt force trauma that coupled with strangulations regulation and your client made some retore and inconsistent statements that we talked about before of the series of interviews yes with regard to possibilities of trauma to the stuff he did but here's what he said he talked about that i may have made some contact with the stomach with my foot i may have done something in reference to know when the child had swallowed a little water made some contact with but the one thing he was very clear about i never punched a child i never child i did not do the actions that caused this child's death he was very clear on that and it's interesting in the record that the one of the things that happens is the state asked the tech to the question and said effect in reviewing the tapes which i have done extensively that's they went in that format is that ever made it's always the kind of sense where i'm responsible i wish i could have done more things of that nature but never any admission to any actual acts and certainly not a statement that was testified to and then picked up on by the state because obviously in preparing to brief they did not actually review the tapes and look at the actual transcript ok thank you very much factual question yes no it was not totally clear to me from the briefs whether we were talking about manual strangulation in world whether there was some sort of strange elation that we salted from the amount of blood