man was selling drugs on the corner he was hit in the head with a gun and told not to sell drugs there is started talking about wayne torres his muscle shows up chester alexander but he calls it picks and that they drive off and call six or seven other people and they have a meeting and  do they decide to go back and fight they're going back to fight people they believe have a gun you have circumstantial argument that with the number of guns demonstrated by the police sticks exam and the fact of  police department expert again information and the fact that a gun was used in hitting the one of the people over the head the that anyone coming back  dealers they're thugs they've convicted felons and so you don't really know what happened out there and asking for an instruction on self defense would have required the admission to make a credible argument that you did the shooting but you acted with a reasonable belief that it was necessary to protect yourself from death or great or another from death or great bodily harm and that is i least an argument that would create an issue of trial tactics that the trial counsel with have to consider in deciding whether to seek that instruction wouldn't you agree but i don't think it requires admission it requires a concession for the sake of argument that you agree that there are sufficient identified as the shooters then when next are you that there was a reasonable belief and a need for self defense then reasonabl or mutual combat but it's a trial tactic argument come up in that context because a trial lawyer would say well i might be entitled to that instruction but it's not like i say i didn't do it if i did it was self defense and if it wasn't self defense i was insane at the time there are lots of people who for trial tax purposes make the decision that their best opportunity to prevail in the trial is to pick cited after the evidence was then that he would best leave sleeping dogs lie and although he's not precluded as you write i'll point out your brief from seeking talked to make that determination even if it was wrong well making a determination is a professional duty making it sound determination is this constitutional duty and just because it's a strategic decision doesn't mean it sounds strategic decisions arms came back to shoot them came back to harm them and it would be naive to think anything else based on the friends evidence based on the young expert the prosecutor even conceded that the prosecutor said the defendants know how it works on the street when they call for reinforcement they're going to come armed the prosecutor said they may have thought there was a gun and they may have just alexander was going to shoot at them the prosecutor essentially conceded that it's reasonable for a second degree or self defense well i think you're taking a logical leap between the the preamble you set up in the conclusion you you ended with because just because someone is coming toward a home and may have a gun doesn't mean it's reasonable to open unreasonable decision by the chinese not to seek the instruction which gets us back to the other issue which is when you have witnesses none of whom have made in court identification in their testimony each of whom have claimed that they were either coworkers threatened to join or misled into making their  prior statements and each of whom have some shall we say baggage that is significant the question really becomes whether the tactical decision chew seeking a self defense instruction is constitutionally deficient in this case it is it jury heard about seven know what happened out here because you don't have a single reliable witness who can tell you what happened out here it could have been anything you have is in fact the crux of the the defense attorney's arguments that was the first of  part of their closing argument and that was a reasonable argument to make as well but there's nothing prohibiting inconsistent theories or alternative theories and you can receive instructions on inconsistent whitefish not be prohibiting it but the question is if you what you yourself have a label inconsistent theories you're right if the lawyers say i'm not going to stand up there and tell this jury inconsistent theories i have one that i think is the strongest and i'm jury a compromise verdict to our right under circumstances where the lawyer with the defense lawyers thought that we want the jury to face an all or nothing and now for a fight them with a basis for convicting albeit on a lesser the justification instruction would not offer a compromise it would still offer death you're not guilty justified  the entire case when in fact this is an experience throughout you well knew that this was a perk for the prosecution right all these statements in pitted the defendants to varying degrees they all went back to the jury room without a jury pressed and court and the state is there you that well the jury needed to see this because they didn't hear him with from the witness stand but they did they heard them twice they heard them from the detectives or the assistant state's attorney who took the written statements and was asked to resign portions of it  asked whether the defendant said certain things in a statement and testified about that on the stand and from the state's attorney present to the grand jury testimony and that grand jury testimony came in through live testimony in court saying yes i asked that question this was the this case where yes there are statements only with regards to mr white only one witness identified him in a photo radar lineup and only one other witness in his written statement specifically named white as issued or and so this isn't that enough itself a reason why a crowd judge might want to send back those statements because you have all of these witnesses all these prior statements and it would take an accountant to figure out exactly who said what about whom and where they allegedly were to put them in a position to make that statement and isn't there a danger from the defense point of view if you were only identified in two of those seven witnesses statements that it might be something that a jury might think well maybe it was for immediate was six of the seven who said that well that's the case with this that it's the situation in any case with any type of evidence whether slide testimony or prior statements the stilt the jury has to go back and search who said what how many people s reconciliation that was something to me maybe some of us agree should have been done or could've been done or would have been better done the question then becomes legally whether the wa things and in that case it might be a different situation where the jury then indicates that needs some clarification of who said what and asked for copies of them that would be a different issue this was the judge before the jury retired to deliberate saying the jury is going to have copies   facts starting with those that provide the right because the jury is getting overwhelmed with one side of the story and not just getting up there are people back in the truman presumably they want each person to have a copy so that three kids can have access to it know how many cases we've seen where where there are no books given through each juror with all the documentary evidence so that every juror can see and they don't have to by trial judge first set that in some way invoke any due process considerations and if it does would there have to be some sort of prejudice worthy i withdraw the additional sentencing factors they stop prosecuting the firing the state has discretion to stop prosecuting or to prosecute certain offenses or lesser offenses or stop prosecuting enhancements even following the recent supreme court decision  affirming the sentence would provide a blueprint for prosecutors and kurds to circumvent the very front of it in any case where the judge and the prosecutor think well there's enough evidence leads smitty's aggravating factors to the jury don't worry about the aggravating factors evidence whatsoever that would justify the thought that this was not inherent in the offense for which these people were convicted that a gun was used i mean a bullet wasn't roadrunner i'm claiming that sprint's or mandates as soon as it's brought to the attention of the court that there's a potential conflict in the case the court has a duty to either appoint your counsel or take adequate steps to make sure the conflict to make sure that the understands the potential of conflict so it doesn't matter who brings it to the attention which is another which is another argument the state makes the state says well it has to be defense counsel that brings it to the attention of the court and of course it doesn't matter who brings it to the a to chop it is the defendant who brings it to the  or if it's an officer of the court in this case which is the prosecutor so what's the judge and where the potential the case one doesn't say what's the conflict actually manifests itself the court has a duty to admonish the defendant to make a knowing waiver it's once wanted to call knight to testify as soon as not because he was going to provide exculpatory information for my client which brings me to another point when defense counsel was asked your answer yes i think the prosecution didn't say why they were going to call him i know that that was an issue that mr baez counsel brought to the attention of the jury which mr carter's counsel did not which is one way that i have argued in my brief that the conflict manifest itself a trial but i think it's important to focus on when the judge asked defense counsel why didn't you tell me about this his counsel said well i wasn't didn't think it's going to be called to testify and he also said i anticipate mr knight limbo his fifth amendment rights well who told mr knight to invoke  duties he had to each client he couldn't advise one client to take the fifth and serve my client's interest mr carter's interest at the same time because it could have been mr carter's interest for mr knight to testify so i think it's the perfect example of  conflict even if this court finds that mr carter must show prejudice i think a prejudice as i pointed out in my brief is established at trial i want to point out of course that you only have to show prejudice  requires proof of effect upon representation in other words you don't have to show that it contributed to the result of the proceeding so that's an important differentiating depreciation in these cases a lesser standard and here you have mr bites counsel question into state with this is about montreal night making him sort of a centerpiece of the defense saying he was one of the shooters actually it wasn't my client and then closing arguments mr white council actually calls knight the elephant killer in the road now mr carter's coun mention night one time it's like he doesn't even know mr knight exist and i would say that that's because he has a conflict in this case he has access to privileged information from mr knight about this case which means he can't cross examine it or counsels the introduction the sub role prior inconsistent statements is not transformed into come system statements merely because they were consistent the issue is whether or not the prior statements were inconsistent with the trial testimony that's the statutory provision and that was the provision that was followed and it was absolutely proper that i said toward her referring for prior inconsistent statements one fifteen lack of proof that the witness was unavailable were rare it consisted of of testimony where there had been previous opportunity to cross examine by once it comes in a substan plications of that statement are equal amount of prior consistent statements if so far as they are consistent with the use now being made of the credibility determinations are the problem with them is not their value but the fact that they're all flawed is hearsay hearsay is often very valuable but man it th a factual distinction in this circumstance where the witnesses don't simply say i don't remember but say this person made in the shoe that detective but it was also made to a prosecutor and to a grand jury and so the issue is not as clean as it would be if there was no explanation if it was just a statement contrary to a statement that we did made before without reasonable doubt both agree that the judge would have the discretion at some point to say enough oh absolutely and you're not glad i'm not going to allow you a second statement  inconsistent statement and that would be judged only under an abuse of discretion standard and isn't the question in this case at least a question in this case whether under the circumstances it would  heard statements and isn't bad precisely what criteria consistent statements are designed to prevent because prior consistent state and see run are enhanced says in court testimony focusing on the substance of the state each of these witnesses or many of these witnesses because frankly i can't keep them all straight but many of them claimed that they couldn't even remember what it was that they had said in these prior statements and in this situation there were statements made to the police detective and then statements made sometime later the state's attorney and the grand jury and wouldn't there be a reason to say to question the statement that they can't recall what they said i'm either of those occasions to say well you said it on this occasion you said it on a later occasion and now you can't recall what it is that you said so i think the problem really is that it's g evidence by its nature creates circumstances where the purpose and the proper use of a prior inconsistent statement comes into conflict potentially with considering it a substance as substantive evidence and the question which we're called upon here to decide is similar to the questions that has been decided present previously by this court as to what to do when those those it's not a four closed shoe by any means i understand your argument but respectfully disagree because nobody in this case has ever argued consistent statements that supported their tile tousled those statements of prior consistent statements in the absence of the recantation can we move on if there's any other topics you wish to address briefly because we have unfortunately two other matters i want regarding the second degree murder instructions and the self defense for constructions i think iran has made very clear that this was clearly a matter of trial strategy self defense is never enough and it was never listed in the answer and it was never the defense presented the defense presented witnesses were not art that was not meant in a self defense scenario that argument was ne to attack the credibility of the seven recants in witnesses his offense attorneys were in a terrific posture  were nobody was identifying them in court that could be better for a defense attorney by which a self defense when you don't have a single with the same court identifying your clients as the shooters that was the most reasonable solid defense i just understand what the reasons because it doesn't matter it was never meant as a self defense argument what was it meant for to negate the fact to start attacking the credibility of the state's witnesses when they all know we're going to recant these people wrong their whole and therefore you can't believe the state and you can't find out a reasonable doubt his guilt because everybody that's going to get on the stand is going to come up in light if they're lying about guns they're lying about everything else too so most credible defense to present there was not a neutral shootout the other that's clearly show that this was a one sided shooting there was literally a trail olds going from the front about house where both of the defendants was standing and shooting all the way over towards us alexander's body was eventually found there was never an argument by meant to argue reasonable doubt with these words about bubba's group coming back armed ready to shoot then it doesn't matter what council meant are you his words conveyed to the jury an argument of self defense they were about to  without any testimony as to what either a defendant was thinking whether that person was saying i think i have to use this gun to protect myself without any testimony from them that they had guns or that they used guns or any other witness saying that these other people who came up had guns just the mere fact that the mere facts of the expert from the police department says this is what we expect in circumstances like this and that somewhere between three and seven guns were used in in a round bad time that that would be enough to warrant the self defense instruction yes almost needed is some slight evidence there's no specific type of evidence required the defendant doesn't have to take the stand the evidence and the evidence supports that there was shot casings found on the north side of the street by the defendant on there that address or an aspect of that there's a case worker in the areas where there was a failed ineffective assistance and a reversal on ineffective assistance for failure to request an instruction on an affirmative defense based on a reason the belief of the assistance and that's what happens here it doesn't need to be from the mouth of the defendant's it can be from the evidence at trial some slight evidence and here you have lots of it as you have the firearms evidence based on the number of guns the location of the shell casing the value of that ten eleven twelve thirteen prior statement saying similar things about what happened it would be different if it was thirteen statements as to one witness but it basically turned out to be roughly two for most of the witnesses to different people after having suggested that i don't remember what i said to these people and b there are all sorts of things going on