keep your voices up this is for recording  we have known that a period of supervised release cannot bring conviction within a ten year time limit for this type of impeachment no appeal the state has argued that this was proper impeachment or that it was within the ten year time limit so the focus of this vote increase should really be on whether slater's trial counsel's error prejudiced him in this trial it's later presented in front of defense of self defense directly placing his credibility on the line and he testified that he was attacked by the complainant janet daniel from behind and responded in self defense then you're on the other hand testified that there was the one who attacked out of the blue so the jury determination here really boiled down to this credibility contest between these two the two participants in the fight you know where the witness  will and his other hand i think he had his hand on the weapon i don't think and i don't think the testimony says he had already disarmed mr daniel i think it was that he brought the second bro and then responded with this hazard i don't think in their pictures showing that the child was on the ground at the scene i don't think it was on the ground yet i don't think this testimony that daniel was completely disarmed and it was you know immediate response to this attack getting hit once turning and walking the second blow in responding which i think is a reasonable if believe that is a valid self defense argument street who are both gave them illegal commerce selling sick rivers on the corner each of whom has a conviction house of their prejudicial well the jury never too old both calling it a credibility contest and miller it was the testimony of two officers against the defendant and sanchez which was not nearly identical scenario here counsel didn't move or object to the user conviction the specific intent crime that would be it a proper acquittal without any credibility assessment there's simply no evidence of intent there is no evidence here in fact the state's evidence showed a lack of intent i mean theoretically under the circumstances if you have a man down on the ground  i'm not saying there's not a credibility campese but he's walking around you know we're talking conceal and carry in the way he's walking around with a concealed faction and he goes after a guy with a hatchet and you're saying that this is close in terms of difference because the defendant proud of his felony conviction but you're saying that the defendant would have brought up his own felony conviction himself if the court had not already allowed that felony conviction to come in in error because everybody calculated the wrong time  miss warning you have a tough one today let's start with the issue of the error conceded now absolutely not you think that there is grounds for the trial the underlying basis which we have to reach first is whether the ruling by the court was an error because if it wasn't an error then it's very difficult if not impossible to prove that the failure to object to it really made any difference at all so let us start with but respectfully this is not a question of error the any also a should be here ok they arguing that the defense attorney had an obligation to surprise him a plea argue with the trial judge right because the trial judge consider ten years and he made a learned ruling he said i think within the broadest definition of the term confinement conclude m s r and do you do you think that was correct i think it's a reasonable interpretation and i think that's the question here the question here is this is such a black and white question th consul was obligated to argue with the judge about it because if not it's not in effect of that you keep jumping ahead respectfully to the next issue which is  e only get to it i think if the judge's ruling i mean mr harris argues that if the if counsel had known the law and had properly argue that the trial judge would have recognized the error and corrected it and the impeachment wouldn't occur whether he's correct that the judge would recognize the argument not we don't reach additionally unless we agree with the position that the ruling by the trial court was in fact in error and so my question to you is are you seriously contesting that the definition of confinement whether we we say that the judge judged it minutely broad reading was justified if you think it's justified tell me that you think that that is within the rubric of confinement and that you know maybe your credibility you will be stretched but by an affirmative answer to that but i've known you too long you respect you too much to think that that's the situation so what can we can we move on past that issue i just don't i don't think  appropriate in the confines of this case to concede that for this reason kate if you look at the history of this issue in people versus youngest montgomery adopted rule six o nine right and in no discussion of what confinement means then came people versus romack and people versus one may act the issue was probation and they said probation was not confinement then after one man came people versus norwood and then nor was the people actually conceded that parole wasn't a part of the concern confinement my point is that there has really never been a a really good discussion of what confinement means and terms of montgomery the concession that he you just recited the state made your eyes has not ever been decided because the state made the concession i'm arguing that the meaning of confinement has never really been analyzed in terms of that when you're an amazon or you're imprisoned in the penitentiary when you're in you're in the legal custody of the only department of corrections to write think that it's reasonable to argue it yes i do and more importantly do i think that the trial charge made a reasonable decision yes they could have argued play neera and if they argued playing out people you know we'd be up here talking about that but they didn't and they argued ineffective assistance of counsel and because they did not question must be was the judge's ruling so illogical so black and right so out of the realm of possibility that this attorney should have stood up and argued with him about it i would submit not so respectfully it's not a matter of trying to avoid your question your honor it's me out of how this case should be analyzed so you're challenging both the first ever second yes absolutely but i certainly think that this should be disposed of on the prejudice probably because first of all judge hill considered just the exact issue still racing he considered at the time considered m s r issue and he decided it against the defendant so on a prejudice problem they can't possibly prove that the outcome of the proceeding would have been different because he considered the exit issues they're raising now and he rejected them and even if you go further than they add and go to the trial this defense attorney use the prior who was not in effect of totally would find the conviction once he knew the conviction was going to come in anyway and the fact that he responded to what he thought or should've maybe thought was a roni is ruling admitting it and many of the evidence as impeachment by finding it not letting it come out after the fact really doesn't weigh in at where you live whatever and or by the way you have a prior conviction don't you that's pointing the evidence this wasn't fun to this is part of the trial strategy the strategy was like isn't the strategy determined on a dynamic bas well as the determination of what is going to be admissible evidence is ruled upon by the trial court i mean you can't just as a trial lawyer expect and we don't see trial lawyers who know what they're doing say well for this is my strategy and regardless of what evidence comes in it's going to remain my strategy throughout if an adverse evidentiary ruling comes in isn't it the responsibility of the trial lawyer to say ok well since i know that's coming in is there some way i can soften the blow and try to turn this as something that can support my theory of innocence it's not what they do that that would be a good trial lawyer but in this case all so all this conviction was used to sort of fortify the defense attorney's profile that the fan and so what he tried to show  as best you can be a legitimate cigarette sales person without a license that he was supporting his family that he wasn't on stage they tried to show him to be somewhat often happy to pull this man albeit without a license and the defendant a stipulated to a two thousand and eight conviction for selling cigarettes without a license and yes your honor noted all of the parties in this case worry there are drug addicts of prior convictions this prior did that because they thought it could affect the credibility determination that the jury would have on the defendant and in this case jumping ahead to the prejudice factor you really only have one i want to the act itself the acts shall we say with the x i would submit that there's no way this can be closely balanced first of all i'd really like to talk about mailer for just a second it seems to me that in every brief i read the parties go the defendant testified therefore the evidence is close balanced that's not what nailers about in his dissent justice thomas talked about just a concern and he said i'm concerned that after this decision every time a defendant testifies there's going to be a credibility  and maybe we should not create an inference that just because the defendant testifies the evidence is puzzling balance so what do we have here we have a crippled victim who is sixty years salt who walks with a cane over the victim's a sad we also have a concession by the defense as part of their defense to the case and i think he did use the hatchet and have a concession that he attack or the confrontation between the two individuals and on that issue the fact of his as the victim if you use your phrase the victim's result injury doesn't shed light on that the testimony of the two other eyewitnesses who only see the x after they have begun doesn't shed light on how it occurred how it began and so not quarrelling one bit with your interpretation of nailing and not putting it in the rubric that just because the defendant testified that the automatically there is a close case you do still only in your case have two people the purported victim and the defendant confronting each other story about how the attack or the physical confrontation began and in that sense there is nothing in the evidence that i can see that weighs one way or the other and so the definition of closely balanced is not dependent in this case in my view on meet the fact that that the defendant merely testified well i don't think that the question on the initial  what happened between south the fans and the victim's testimony that it was just an out of the blue attack upon him i think that there is a lot of other evidence in this case which supports the victim and goes against the defendant for example the victim and the defendant had an altercation on the street before hand but they both go home and the defendant comes back with a hatchet ok that's the first thing so it comes back on to with the he wasn't the conviction that got in wasn't that he was going after somebody with a lethal weapon was a no he wasn't they didn't hear about a conviction for attempted murder now right no i mean and that and the question boils down backgrounds given the two thousand a prior conviction which the defendant put up front and the defendant not his not contested on appeal given the totality of the defendant's  testimony and how he explained the prior conviction given the wealth of the evidence in this case whether or not there jury and by the way it was and i did in closing argument there was nothing about it that was particularly highlighted even if this court i don't think we should minimize the import of a burglar condition that's the first of a thorny it involves the threat or risk of violence entering into someone's property with intent to commit a crime inside that's much more serious than the live cigarette sales the jury would have heard about in the narrative of the case the council said mr slater went back to retrieve the hatchet in find it as the for the purpose of the confrontation but that's not the the evidence the testimony was that he carried the hatchet on his pocket even earlier during the day when there was a nonviolent  now she also discussed yes in one act as dealing with probation but what they did was reject a new language in the federal rule that it probation or parole to the federal rule in addition to confinement so don't know it was just released from confinement we should not be confident in the outcome here when this guy goes back to the scene where he had a prior argument with somebody carrying a hatchet and you want to say that just because this burglary conviction got in the jury was completely misled as to whether or not this hatchet wielding man was guilty of aggravated battery it seems like a bit of a far leap for me well it's a catch it carrying not wielding until he was attacked by mr daniel he again didn't go back to retrieve it after the first confrontation the first competition wasn't violent at all there were some words exchanged but nobody was clear about what you know what was said and the rock presumes these conditions are damaging to some of the credibility that's only evidentiary purpose that's the only reason they come in to damage someone's credibility so we have to presume that juries at least weighed that against mr slater at the roast there's no basis for this rule in your law and just touching on