in this case there's no weapon there's no physical evidence at all and there's no showing as to why this crime occurred in this context see only presented a weak case we believe that this question this question refers on the merits of that certainly affects how we evaluate prejudice not ineffective assistance argument but the witness by witness firstly of maria vasquez what is her about her best guess relate that she she saw that the shooter in the middle of a group of three man and that the shooter walked up on that sidewalk that's completely contradicted by the state's other witness of sophie guzman who describes a completely different crime she describes that the shooter still alone was dropped off in a black s u v this simply isn't the kind of contradiction that a jury can for can group man and a group of three spanish man not including my client at the scene on it given the contradictions and the shifting testimony of these witnesses you know it's clear that the very least this is a closely balance case and we believe that given these contradictions that it's couldn't reasonably resolve them more importantly and i understand this is the court's interest this this case is barely deserving of confidence to began with what defense counsel broken promise left the jury to believe that even the defendant's parents had after opening statement even before he rushed it without calling a witness shouldn't we know that before we make a determination as the weather was it was he would strategy or wasn't there things we do know that  but she should tell the jury you might expect me to call the parents but the state's case is so weak i don't feel it's necessary at least do something to mitigate that expectation because the expectation here creates the impression that that the defendant's parents abandon his own defense it night between his statement and nothing well to answer for in this climate have to be something that council can would not reasonably have discovered through investigation that eight months between the time he noticed the alibi defense and trial then he would have had to lose two witnesses recently  can do it where there's actually some opportunity of getting meaningful relief instead of getting bogged down in the post conviction process where the odds are it will probably take four or five years before we even get to a second stage hearing going to cases all seem to say  but in those cases a lot of the time it was simply based on the facts as found by out the the lower contests there's nothing unusual about doing it but there's no reason why discourse authority would be different in the from the chronicle contest to this particular unusual context especially given this odd fact that we have the witnesses affidavits in the record saying that the defendant was with them further i want to clarify that there's two separate claims here there's a claim that he should have called the witnesses after he promised them because their testimony was strong but there's also this claim of he should not have made the promise in the first place not knowing if they were if they were going to i'm not sure is then how do we get these affidavits right here it's not exactly clear to me either they ended up among the exhibits on the record on appeal we know we have no idea i have no idea how they ended up in among the exhibits that the court took and as you'll notice there's a number of materials that generally are not in the record on people that were in the record this case such as not testified witnesses statements to the police  i'm obviously missions and maybe you are to hear or read right now you're on all i know is that the that they are moderate the exhibits in the record on appeal where you're from the state i think you is correct they were not presented to the judge or the trier of fact in any way shape or form their discovery sensually that was tendered in this case they happen to be part of this part of the defendant she is you to discovery that she she  discovery course were in there but these were these were documents that were tendered in discovery putting handwritten statements that were never introduced a trial grand jury transcripts course were never understood trial they were they were turned over in the discovery process and the impound order i believe is included in the common law record and it's rather large so it it's clear that these records these documents were impounded maybe inappropriately so for purposes of direct appeal in the you know the mere fact that they are in the common law record does not make them part of the trial record and i think this court is identifying that i don't know what you mean by impound big they were they were they were put on it in a court order yes an order the trial judge some all sort of i d's in some way yes after the after trial and i believe after sentencing during the post post bail hearing process these right these were  compiled and they were listed in an order and they were signed by the judge and they were later impounded with the clerk of the circuit court but that did not make them part of the filed in the court record is discovered they were what well i think that identifies the very point we don't know what the strategy is and the law is very clear for the last twenty six years in strickland it's been clear we must in the face on a silent record in the absence of anything to indicate otherwise reviewing courts must lie for my son what if the defense the defendant himself told his attorney you know a lock i don't want my mom deadline for me don't call and or they have this sheet of paper they give a very vague in general alibi he was with me at a barbecue but i don't want them to lie for me there's myriad possibilities of what caused council to change his mind after she did the o what what the cases the defendant has cited where that has been found there's there has been a record established to show that fact there's been a post trial here i believe that was that was the case and bryant working with the issue was litigated so there was testimony and i believe if i'm not mistaken that the attorney actually testified at that hearing in the english case which is a six circuit case that the council has cited as additional thirty authority there was a very long drawn out that there was no alleged ineffectiveness at trial and i understand how it was not going to concede his own ineffectiveness but i think on that point there's noting that the defendant declined to say anything an allocution his mother testified at the sentencing cited in fact paterson being chief among them actually said in no uncertain terms that when when an allegation such as this is made the appropriate vehicle tools to address it on its merits is only through a post conviction and at patterson actually involved in a hearing where the i believe that the attorney actually testified but the explanation that he gave for not presenting certain evidence was completely unreasonable it was absurd but even with that testimony the whole of the supreme court sent it back for a hearing to determine whether or not that would change the results or actually what they say and i don't have the direct quote was that maybe there was an a difference in undisclosed yet equally reasonable reason for not presenting that evidence and that's exactly the situation here super super speed position would be this particular issue that the defendant is really used this is court should take the position that we will monitor us on the earth will not dispose of earth but rather it should be properly brought in p c that that is the state's position and i think that that goes hand in hand not only with patterson and the other you know post conviction issues which should this issue it's it's not something that on a silent record that this attorney can be branded ineffective simply because the record because the record is silent to to reach the issue this court would actually and that's what intention of calling this as witnesses i don't know that i can't get into defense trial defense counsel's head but that he believed that they were going to be presented during the defense case in chief and they had all the knowledge in a day well case that's that's the stream and i guess you know i'm just it doesn't make any sense i'm i'm sure maybe i'm missing something it just doesn't make sense to me why i think that somebody would get up and say that then are the the attorney was was a was competent was effective was had the wherewithal not to call them because he had potentially they would have testified no that's not true what i told the defense investigator is not true i told you this morning i'm not to lie for my son i mean then i've i believe that's what happened and then we sat and he said after reviewing the document yes they told me that greg gregory banks is quite a possible offender and so that's kind of the start it was it was an it was a bit but then was there any discussion about documents going to the jury there while there was not not documents because no documents to go to the jury but so and i think that bolsters our point that it did not go back because the only thing the did go back that's clearly the record for shell casing and the state's attorney said judge it's fine they're there they're not live ammunition they can go back so that was the only the only discussion about what was going to go back to that to the jury was the physical evidence of that and not and not the dokken itself in this in that is both by the fact this trial judge at the beginning of trial told the jury police reports are not evidence you're not going to get them there and this was a matter of law there are there  well i guess in the distinction that we're drawing is that and then i think the meeks case discusses that very clearly it's clear miscible as impeachment and that's where the information the testimony from the witness regarding the contents of the of the r t of the of the case report not the case support itself but if they did without objection yes that's correct and i guess so the parties did not articulate that this that's correct if it was if it was physically in or just as of as i mean there's a frequently at evidence is admitted it at trial whether it's from peach man or substantively and it doesn't necessarily go back to the jury and of course impeachment evidence would would never go back to the jury can have a hearing while the winces memories are fresh finally or your honors it's clear that we don't presume what we might you know we might presume that and inform strategic decision is sound we case granted a new trial because counsel should've learned that in the months before trial and this is where we get into the difference fifty eight months that passed between before the time the alibi was noticed and the few hours that passed in the first and second day of trial one fact is we know where the where the history of perjury lies in this case it's not with the witnesses signed affidavit saying that they're ready to testify it's with the state's own witnesses that that are giving confusing contradictory