good morning your honors in may it please the court counsel my name is amber hopkins read and i'm with the office of the state appellate defender here on behalf of the defendant appellant joseph murray under both the legal procedure and facts of this case he has made a sufficient showing during a rd stage evidentiary hearing that his trial counsels performance was deficient when he failed to impeach the only eyewitness with three line ups that were performed after curtis pride however the circuit court improperly determined that murray was not prejudiced by counsel's deficient performance accordingly this case becomes comes before the core on the very narrow issue of prejudice this court should find that murray made a sufficient showing of prejudice to show that his trial counsel was ineffective us this court should reverse the morays conviction ever met in the matter for a new trial so looking st at the posturing legal standards involved in murray's case here the state filed a motion to dismiss at the nd stage which argued that murray's claim should not advance on to the rd stage because the evidence of the defendant's guilt in this case was and is overwhelming and would not have been done looted or mitigated by different decisions of counsel however it is well established that the court has the authority to rely on either point of the strickland analysis to dismiss a strict one claim this court the circuit court made a decision not to dismiss murray's claim on the purely legal grounds of harmlessness at the nd stage although it could have as such the corps indicated that it change the question is still whether there was a substantial showing of a constitutional violation the only difference between the stages is what are the facts and credibility of credibility determinations are liberally construed in favor of the defendant which again is irrelevant in the question at your legal question which coincidentally the nd prong of strickland prejudiced analysis is a purely legal determination this which the circuit court found was meant at the nd circuit or at the nd stage standard which was as i said the same as the rd stage standard that means that it meant a significant constitutional violation however at the rd stage hearing the court made factual and credibility determinations on whether counsel performed efficiently but then doubled back on its legal finding of prejudice without indicating what had changed between the court's finding in favor of prejudice at the  stage and its later change of heart accordingly this arbitrary determination should weigh in favor of murray's requests for a new trial next looking at the totality of the evidence presented at trial and the repeated claims of ineffective assistance of counsel against defense counsel murray showed by proponents of the evidence that his chance of a different outcome was better than negligible looking st at the d n a in the presence of a however just because marie has been seen wearing a similar hat and his d n a was on this hat does not mean that he was the shooter jeter is own account supports that murray couldn't have been the shooter as teetery saw the shooter fleeing from the apartment basement with the hat still on his head this would make the hat found in the d n a extracted later irrelevant to the murder over all the presence of the house does not indicate that it was left by the shooter was not due to any call made between murray and bettis you can see this based on the record that is had her police interviews on january th two thousand and fifteen days later she reached out to a private investigator were guarding the statements she made in this case suggesting the beddes wanted to recant her statements as early as five days after she made them well before any call was made in this case  further despite the call with murray but it showed up to court and explain her absence to the court there she indicated that the state's attorney was disrespectful and rude to her and she just couldn't take it any longer accordingly the fact that there was a call between murray and bettis before bettis testified should not be given significant weight to determine if there is a reasonable probability of a different outcome at trial especially since bettis recanted her testimony prior to any call next what is essentially the focal point of the evidence i will cover badasses test betis testimony here the evidence is assessed essentially a contest between better think he'd say especially considering that the d n a is r based on which party is considered more credible that the trial court noted here kedar it was innocent truthful and credible so looking st at betis is testimony her testimony should be given limited weight because throughout the investigation in trial she has given multiple inconsistent statements to police her testimony has ranged from being asleep during the shooting to driving the defendant to the shooting to not being able to remember anything just stating that the defendant didn't wear the clothes identified by q three on the day of the shooting at every turn her testimony has been inconsistent however to her credit as i mentioned earlier she did factor she gave her testimony to the police on seventeen dollars on january th she reached out almost immediately to a private investigator to recant her testimony which indicates that she was going to recant her testimony about what she gave to the police prior to trial next looking at testimony and the lineups so here are the lineups clearly undermine various identification of murray at trial the impeachment of value of the directly contradict contradictory testimony made by the state's premier eye witness can hardly be overestimated case law supports the witness identification regarding a description and i made closer in time to the offense is the one most credible here the key three key here is description made close in time to the event was that the defendant or the perpetrator was skinny or medium build one hundred and fifty pounds in his mid twenty's and about size that a tall he also selected two men that the perpetrator looked like in line of those two men were a derrius walton and vincent canceller and other similarities you can see from these two photos that he said look like the perpetrator is that they had clothes cut hair and narrow july and the defendant's description however he was thirty two years old at the time of the offense five foot eleven thousand two hundred and twenty dollars pounds had braided hair and a round face and draw to not bring these lineups before the jury and impeach key to his st identification of murray as the perpetrator operated to give he drew a significantly more credibility than he deserved additionally looking at key various description of the clothing that the shooter were there were also significant discrepancies compared to what murray was wearing in the picture that was taken of him at the hospital he did teachers description was that the perpetrator was wearing a red winter coat or jacket not a sweatshirt was right white writing across the chest but not the sleeves and had buttons he was also wearing blue jeans and white shoes the picture of murray however showed him in a hooded sweatshirt with gold in white red lettering across the chest the sleeves were red and not white but did have some writing on them and it was a sweatshirt with a zipper and not buttons this discrepancy would have would likely have been seen as more significant had the jury known that there was a justifiable reason to doubt the  testimony overall keiter was the only witness to have seen the shooter immediately but before and after his father was shot and his identification of murder is the perpetrator is completely undermined by the lineup evidence and the remainder of the evidence doesn't directly point to marias the shooter in conclusion just because there was a prior decision finding no prejudice doesn't mean that prejudice can't be found in this instance especially counsel's reppert representation was so poor there were multiple claims of ineffective assistance of counsel with even the direct appeal being decided based on strickland prejudice and counsel admitted lee chose to consider quote you have talked about all these issues of prejudice but don't we weigh that against all of the evidence in the case yes this court should look at all the evidence in the in the  he he was the one who said he thought that the shooter the perpetrator left with the hat correct correct yes correct however do we just ignore the way this had just simply appeared in the common area right outside the door how how did we how do we balance that head could have been placed there in any number of instances that are  but how how does that happen with his d n a get there when we had a witness that completely unbiased witness who said it wasn't there when i left it was there when i got back i can't remember the name of the neighbor who said it wasn't there when they when they had left the apartment earlier right but again that could get there in any number of ways as was even discussed at the post conviction proceedings the defendant has been known to use marijuana he also his girl her ex girlfriend at the time lived nearby so there's any number of ways they could have gotten there prior to the shooting that doesn't connect him to the scene or to the couldn't they reasonably conclude that detail in terms of her driving him there seeing the outline of the gun in the pants and having him go out of the car with the hat back to the car without a hat i mean even though she's all over the board if the jury within its rights to it they might pick that particular version especially when  dovetails so well with the other physical evidence especially the hat the justice dorcas and just referring to of course the jury it's well within its right to weigh the credibility of each witness but the jury also wasn't given the additional evidence that the lineups completely contradict the only person who saw the actual perpetrator of the shooting so when taken all of this to evidence together and you see that by this this testimony is goes one way and then the other teacher is the only consistently truthful and credible witness and he his description of the defendant is the complete opposite of what the defendant actually is and the jury was unable to weigh that testimony and if that evidence were to go before a jury there is a reasonable likelihood of a different outcome in this case negligible for presidents to be found but it isn't the standard in illinois that in order for us to find prejudice the deficient performance you must show that the trial was unreliable or that his it's not just speculation you've got to actually make a showing that there is a reasonable probability of a different outcome such that leave review in court believes the result of the child is well the trial the rd stage hearing judge rely primarily on the appellate court decision and the appellate court didn't consider the key to race identification of the defendant new balance of the evidence and this impeachment evidence of the only credible witness makes it such that the probability of a different outcome is likely because he's the only credible witness that the you know credibility determinations up to the jury and here not only do you have that that evidence that obviously the inconsistent seized and identification is something that was before the jury the jury knew what the description was and they it definitely was something that the jury could weigh however as i indicated better the record shows the betis was interested in recanting her statement almost immediately after she made it so it shouldn't w significantly for murray and the weight of the evidence here because she indicated that she was drunk and high at the time that she gave the statement and she didn't d that the result of the trial would not have been different the trial court went wrong because it didn't the impeachment evidence the significant weight that it deserves when looking at the entirety of the evidence believe that the perpetrator left with the hat shows that the d n a left at the scene is not relevant and impeachment evidence completely contradicts what who the perpetrator of the shooting was should be given significantly more weight and it would have been if the jury had seen that evidence the jury would have can likely considered it significant and given peter a much less they would have found him much less credible than he actually was and they could have not only impacted what he said the defendant looked like it also would have impacted here is description of the clothing  that were introduced in the case very well that's all i have burns can morning honors my name is mary about ferns and i represent the people the state of illinois we come up for this court this morning to respectfully ask you to affirm the trial court's judgment the defendant post conviction relief as an introductory point i would like to comment on one of counsel's arguments that trial counsel considered the young witness's interests over his clients i think even even the witnesses interests more concerned what the trial court properly found was that trial counsel's concern was that the jury would react negatively to his client if he peached or overly challenged the young the victim's young son it wasn't for the benefit of the young son it was for the benefit of his client even so the trial court determined that the defendant had met the st performance prong however i think that the trial court's determination that he did not meet the prejudice prong is really compelling  post conviction court looked at the issue of the impeachment within the context of all of the evidence and it did in fact seriously consider the d n a in the hat because not only did jovan pettus who had driven him to the scene recognize the hat and say that he had come back without it but they had was also recognized by the woman who was the other the other end of the romantic entanglement which apparently was the motive for the shooting and she recognized as well and so there had with the defendant's d n a at the scene is very compelling john paterson's multiple statements despite a recantation what she told the police despite the fact that she claimed a bit high was so consistent with what it actually her occurred that day that the jury i think the jury was entitled to reject her recantation and this court and direct appeal found overwhelming evidence even not considering her testimony so i think realistically the post conviction court properly found that the defendant had not met the prejudice prong i understand that this court has read the briefs and so i'd be willing to listen to your questions man and therefore not make a proper credibility determination i think realistically in the in the same way that underactive peel this court did not consider missed that assist testimony the post conviction court considered the evidence independent of the impeachment in finding overwhelming evidence so i think that i think that the post conviction court properly out the evidence when it made a stream a nation and it found that the the surrounding evidence independent of the impeachment was sufficiently overwhelming that it would not have there would not have been a reasonable probability of a different result trial talking about the defendant's statements about us right in the trial i will be honest i do not recall how it came about at trial forfeited because it wasn't raised in the briefs and in any case they did not make a showing that the trial court decision was manifestly erroneous on that issue next i want to point out that the stay consistently cites that the evidence what the trial court decision was independent of impeachment but that the rd stage hearing needs to consider the impeachment evidence in addition to the weight of the other evidence to determine if the evidence as a whole if there is a reasonable probability of a different outcome so those are the only two points i would like to make if your honour's have any question case that makes that statement better than negligible not yet your honor thank you that's all i have thank you to the court you