unlawful possession of a weapon by a felon and then sentenced to thirty six years in prison and this happened after defense counsel failed to call as alibi witnesses trial failed to impeach the victim's identification of him as the shooter and i through the jury's attention to irrelevant prejudicial evidence in our view to theory not supported by yet so the defendant has raised one issue in this case and that's counsel was ineffective for all of these reasons and he respectfully ask for a new trial now we argue that while the failure to call the alibi witnesses alone was ineffective assistance the other aspects of counsel's performance really demonstrate his overall ineffectiveness in this case but i'd like to first focus on counsel's feeling recall the witness identify the shooter you haven't showed that there had been bad blood between the defendant and mr ashton the defendant was dating mr ashford's ex girlfriend and he should smith and their daughter was calling the defendant that alternately ashford identified the defendant as the shooter and this case is unique in that the defendant has been tried three times for aggravated battery with a firearm and unlawful possession of a weapon i felt at the first two trials smith testified to the defense out she testified that the defendant was with her asleep at the time of the shooting and that the defendant didn't commit the offense now after the first trial the jury was deadlocked and the court declared a mistrial at the second and nearly there was a nearly deadlocked jury during deliberations the jury submitted a question to the court and then also unsolicited gave the information that it was deadlocked nine to three in favor of guilt and ultimately the jury found the defendant guilty that the third trial the smith was not called to testify and we acknowledge that there's a strong presumption of sound trial strategy in the decision of whether to call a witness but that presumption can be overcome when it appears that council's decision was so irrational and unreasonable that no reasonably effective attorney under similar circumstances would make the same situation and we argue that the record demonstrates that this was the case here we don't simply have counsel failing to call a witness who is called it another trial we have the court to adopt all previous motions that ryan counsel had put forth which included the defendant's alibi and he said that there would be quote no surprise as to what smith would testify to since she testified that the first two trials c now he then told the jury that they would hear from the mother about where she was at and what happened and the state points out that defense counsel do not exactly use the word alibi but then proceeds not to explain what counsel could possibly have meant by saying the mother would tell the jury about what happened and where she was at we submit that the statement is meaningless unless it relates to the shooting incident and why would why would we hear about where she disaster unless the defendant was with her we also submit that the word alibi carries a negative connotation it implies somehow that parties are putting forth the story rather than what happened which is what counsel set and i in any event defense counsel highlighted to the jury that he plans to present important some time after opening statements counsel then kaufman never mentioned her again and we argued that there is no conceivable sound trial strategy for failing to do this to not mention it to explain an availability or unwillingness to ask for say points out that she didn't call police immediately we see minutes really not that damaging it's not unusual current witnesses to go directly to the police which she did do was she sat down with defense counsel two months after the shooting signed a statement submitted to the state of the state also pointed out some other aspects that we felt were not significant and they went to the weight of the testimony as she testified that she set up a meeting between the defendant in ashland and that astrid said he didn't feel safe that close to way state also points out that i asked her to claimed that she told him if he dropped the charges against the defendant she let him claim their daughter on taxes but on cross examination she denied it this is not a case where there was really damaging impeachments if there were no prior inconsistent statements she didn't change her story and the state's characterization of smith's testimony is contradicted by this honorable court some characterization of the evidence as close when she didn't testify and it's undeniable that when she testified it the close about minutes was about three thirty on the day of trial the court's admitted to the state and defense counsel that they could close the evidence and send the jury home into closings and deliberations the next day the state said he wanted to continue defense counsel said sure we're here if there was something that happened where she didn't show up or was unwilling and can counsel didn't want to tell them where to stay he had that opportunity but instead he decided to push through yourself  well we submit that the rest of the record indicates that the way council did handle trial shows that he was cumulatively ineffective we'd also like to point out that you know the defendant filed a procedure claim of an effect of the senses of counsel post trial defense counsel was at that hearing the state argued that he wasn't but he was court scheduled that hearing with defense counsel in mind because defense counsel seems larry smith he said he wanted to follow it for air d c purposes and to pursue his bond assignment and so they schedule it with him in mind and then on the day of the hearing the court tonight the defendant's motion and they proceeded to sentencing the defendant was reviewing the post sentencing investigation report and then the court addresses mr larry smith on another matter you know we know he's there and presumably if he had some information to give we would presume that the suit would call him to testify at the hearing on this motion that's true that the defendant and all the defendant was proceeding pro se and we he's also said there are going to be cases where countless ineffectiveness so look not from the record that you can deal with it on direct appeal and that's what we have here there's really no sound trial strategy for dealing with the case the way the council did it the other aspects of of ski mask or something in the back seat there's virtually no value in drawing the jury's attention to this aspect and it's highly prejudicial in a case where the defendant was on the shooter was said to be wearing a strange mask during the summer months counsel there was a trail of blood leading from the back in the kitchen to the front in the living room and counsel spent time cross examining ward and garner on their positions during the shooting wasn't exactly clear what he was trying to say but it seemed that he was trying to imply that the shooting didn't happen exactly they said and then he proceeded to impeach the crime scene investigators asking about the bullet trajectory even though they repeatedly said that they weren't ballistics experts and he tries to tie it all up in closing that this was quote absolutely and utterly ridiculous and normally i would think comments like that are too extreme might even raise an issue about them but in this case that defense theory was in complete contravention of the physical evidence and we submit so irrational and reasonable that the reason the effect of attorney would be the same situation we also know that council failed to impeach ashford's identification of the defendants the shooter so even if all of this let's say is reasonable identified the other man as someone she knew from school and she said that yes for and so counsel asked for permission to do this he didn't do it he then doesn't impeach ward either and her identification with her description of the shooter got increasingly specific with each trial she initially says that the shooter call the word of mouth but she couldn't say anything else about them asked by the second trial she says the shooter had a mustache and a mask was held up by a strap presumably to line up speculating as to what why this attorney did or did not do what he didn't do and at this trial and i think i think it's going to be hard perhaps for trial lawyers to have their don't have a chance to explain themselves but in this case and in all similar cases the attorneys do have chances to explain themselves and the attorney in this case wasn't given an opportunity this isn't the right forum for this particular discussion of this court  matter is beyond the the record here on appeal because again it counsel to the fund and argues that there is no conceivable reason to do this well what if what if there is again we're speculat and he clearly at one point planned on calling her discussed her testimony and his opening statement so the question is why didn't he call or to testify and that's that's the question we can't answer because we have no alleged ineffective and was able to explain why he or she did or didn't do what they did and that people say that that is clearly the the most preferable option here because again we're just speculating as with the victim in this case and offered to bet if he dropped the charges she would allow him at the victim to claim very daughter on his taxes a benefit to him and that she also offered the fine it would pay him money if you very at the briefs and this case presents a reasonable reasons as to why the attorney didn't call this witness but even more importantly than that the people don't believe we should be speculating here  explanation i don't know how you ever get past thinking that as long and something that the reasonable attorney would do it that if that's a plausible explanation or some of these other things  hard to come up with a reason on the outside of this case why this attorney who was inside of this case did what he did or didn't do what he didn't do i got i don't i don't believe the people but cement that we shouldn't have to speculate as to why this is i'm the surface of the certainly peroni is but the question is did that that or that affect the outcome of the trial and i can without having read all of the evidence in this case i don't think i am in the right position to say whether it did this is attorney should be at least given the opportunity to be asked why he didn't why he performed the way people are warming and the fact is at this particular stage right now i believe the only thing that the people would don't but the defendant deserves a fair trial and it's really hard to review this record and not include the counsel was ineffective when he failed to to call the one witness he said he would call up until opening statements and then completely undermine the credibility of defense during closing arguments regarding the state's point that the cases we cited to run collateral review were you know were analogizing to the court's reasoning here and the didn't speculate there either counsel in both the cases we cited in king and bryant were asked and they said trial strategy can't really remember exactly why but it was trial strategy and the court said there's really no conceivable trial strategy for failure to call and available alibi witness that would bolster an otherwise uncorroborated it's you know this is a unique case it's not common for counsel to perform in this way and he's so