brother much older brother teen years older this is another case where the allegations of sexual assault were not made until many many years after the alleged assaults occurred in this case about ten years after these cases present great difficulties for defendants when it comes to mounting it sounds other than mr morning testifying on its own behalf and denying all the allegations it's pretty much impossible to do anything else just because of the age of the allegations this case became a peer credibility battle between the complainant and mr morning the complainant to raise these allegations when she was fifteen years old at trial she testified that she lived with mr morning from the time she was born until sometime between the age of five and nine she testified that when she was five or six years old she had gone swimming in the pool and had come in and use the bathroom and mr morning come in with put his finger in the china she further testified that at some point at the same age she was going to bed she was in her bed in her pajamas and mr morning came into her bedroom and did the same thing as i mentioned mr morning took the stand testified on its own behalf and all those allegations to bolster the complainants credibility in this case the state improperly a list of the testimony that mr moment morning could not explain why the complainant would lie about these in with the reason why the complainant would lie then when the prosecutor was a cross examining mr morning she asked him if the complainant lied and mr morning said yes she asked him why mr morning said he didn't know she asked him you're saying that she's lying and mr morning again responded yes prosecutor again asked why mr morning again said he didn't know the prosecutor asked him can you think of any reason why she would try and mr morning offer perhaps somebody put it put her up to it prosecutor asked who and mr morning had to admit that he did know who who worked on during the state's closing argument the prosecutor argued to the jury when the defendant was asked why would she make it up he said i don't know he went on to say maybe somebody put her up to it that's the best he can come up with well who put her up to it he said i don't know what this comes down to is who do you believe this claim as the state reviewing for plain error it would be determined whether any error actually occurred for a number of reasons it was improper for the state to present this evidence first of all the defendant's mr mornings opinion of the complainants credibility lying course of also how managed it demeans and ridicules the defendant i wouldn't say i want to so far as ridiculing mr morning in this case but i think you could look at the closing argument by the state to remark that's the best he can come up with as being somewhat demeaning where the evidence is close and occur to built now course i have haven't found a case where this is a plain error but the courts of analyzes for harmless error and they have held that when the evidence is close and the case turns out the credibility of the witness errors is not heartless and that's i think a put boy here this is a close case it turns out the credibility of mr morning and and the complainant and it he says no i can't think of it but i think i think that it's improper it's not relevant what you know whether or not he can come up with well if the idea isn't so why why would one of the doesn't seem to me to have any relevance i don't see why you know he should be able you have no idea what might have gone on behind the scenes and he can't be expected to know that there's no real reason to expect t case that it was an inadequate crinkle hearing conduct and indeed if we were to agree with you would should this court do anything more than just essentially so your position is we shouldn't go here or my position is you should send it back for frankel hearing if you don't send it back for a new trial if you determine that the trial is accurate which i'm claiming it is not then the crank will hear it would become necessary to determine whether house is ineffective if this course finds that mr morning some title to a new trial there is no reason at all to have the crane clearing because whatever counsel's deficiencies were in this know not only was the evidence close in this case you know mr morning didn't confess he denied all the allegations but the pair went directly to the jury's ability to fairly evaluate who was telling the truth the state's point in raising this evidence and eliciting it and bringing in making its argument is that if mr morning can explain why the complainants lie she must be telling the truth now puts the defendant in a bad spot  it's not very logical but it but it has a surface appeal the implication of the closing argument that's the best you can do that implies that if mr morning can't explain who put her up to it or explain why she's lying then he's guilty so what the arguments do is skews the ability they don't know these arguments are improper to excuse it excuse the ability of the jury to evaluate that complainants credibility accurately they  has to be able spline why the complainant this lie simply isn't the case cop and because there was a significant delay in the trials mr morning was already ham strung and this defense when the trial is twelve or thirteen years after the event supposedly occurred it's not possible to present an alibi i snap possible that there's going to be any d n a because there weren't even any allegations of a crime until ten years after closely occurred it's not going to be any possibility of a physical examination or anything else which shed light on i magine i've never been a prosecutor i imagine they don't like these cases worked on corroborated and stale allegations but i think if you were an innocent if if you had to choose between good and innocent defendant in a case like this or the prosecutor in a case like this you choose to be a prosecutor a hundred percent of the time and i think it's important that mr morning get a fair trial on a case like this where it's so hard to found i'd like to discuss the second argument briefly because it also bears on the jury's ability to evaluate the credibility of the complainant fairly at trial the prosecutor asked the complainants and mr mornings mother did the complainant tell you something then that it happened to work and the mother testified yes this testimony was a road that the trial court ruled that it was relevant but the problem is that it improperly bolstered to complain us credibility because the jury would have inferred that she made this prior consistent statement that she told her mother what happened and that's more true because the mother tested it didn't just testified like properly should say i talked to the complainant and then we went to the police she testified the complainant told me something that happened appellate courts have noted that prior consistent statements unfairly enhance the happens for which strongly implies that she made a prior consistent state that technically it would be proper to say i talked to her and and then we went to the police but even that limited thing would be proper here because it's totally irrelevant because the fact that she talked to him went to the police had no relevance to any issue at trial didn't explain why that was the way it simply explained why they went to the police and the jury would know that every criminal trial starts with criminal complaint somewhere so it didn't add anything useful to them the jurors who'll malinche all it did was let the jurors know that the complainant told her mother that something had happened and probably what had happened which bolster her credibility so again as a explained before the trials unfair this is a very difficult he was given the opportunity for a continuance for a week but i'll explain why i don't think it matters mr morning said he was dissatisfied with his attorney and the trial court immediately announced he would be appointing and a lawyer a public at public expense mr ford then told the court that he thought that it surprised mr morning that he would be eligible to have appointed counsel missed that mr for also told the court that mr morning had no money to hire attorneys so offering mr morning a week whether he accepted it or not to hire an attorney doesn't matter because there was no way he could do it so he stayed with mr fuller because he was stuck with him after because he was withdraw allegations the court of told him you can't have appointed counsel he can afford counsel well with a kickback it was a week later i think it was yes did your client say i want to no he had no choice other than to go pro se so he has no choice it wasn't a chance to have you know to pay for off the case so that that's my i maintain that however happen to the cross examination of the defendant in people versus innes the supreme court held the exact same type of cross examination that would took place here he said it was proper for the defendant to be asked do you know why the victim would falsely accuse because it was a matter within the first person all of that is exactly what was done here cross examination was in terms  oral argument this warning was that the defendant should not have been asked do you know why she would have lied so that this is the first her oral argument that the complaining about the defendant's that the victim could be asked why there was no initial report when she made the report what were the starter says is prompting the report the trial court from the rule that the people that they picked and spoke to something happened that is not hearsay it is not a prior consistence failing to buck the credibility it is the state fleet and the state has a right to explain how they became involved in ah i think i think that the truck was not required to inquire but if it was required what he did he was correct the trial court is not required in every circumstance is to question the defendant or his attorney i'm not suggesting in any shape or form that the state's attorney has any role at this stage of the proceedings it's strictly between the trial court and it's only one after a counsel is appointed if castle point the state you first you're absolutely correct that he did get a week off and he came back and mr fuller said the family wants me to continue but i maintain my position that since he had no other alternative other than to go pro se or have mr fuller represent him that that merger the third choice he was the judge said or you can hire another private lord but yes that's true but i'm believing mr fuller's representations that he had no money to do so as for the state's arguments detective thompson's testimony was certainly my position that that's improper that's why the first thing that was in that argument was his testimony it's improper for the same reason as cross examining the my position is that i didn't raise for the first time that that's why it's in there in the brief very beginning of the argument the first thing the brief focuses on the cross examination and the closing argument because that's plainly the most  responded to i think it was my opponent's position at the time well the supreme court decision side or the other side was just wrong lynch of the that would have to be a carefully written decision by not what what happened here and he has never approved of any closing argument like the one here or the prosecutor said that because he can't answer the questions as that shows that you know as best you can come up with