my name is jessica where on behalf of the opposite of the state appellate defender and i represent the appellant mr james short your honor so day i would like to argue issue one of my briefs regarding the trial court's failure to admit defendant's prior consistent statement as our courts have long held that a prior consistent statement is that miscible it's rebutted in france that the witness this trial testimony is a recent fabrication in other words a prior during its cross examination of the defendant and the case law says well you know the cross examination and asked him about the statement that he gave at the police station which didn't make any mention of self defense other than impeaching him by omission where is the suggestion in the record of recent family came because the state elicited from the defendant on cross examination you have the opportunity to make changes to your statement correct you have the opportunity to read over it correct you want in a jail cell when you are giving the same and all of these things were inferring that if he was acting in self defense it would have been in the statement but other than the impeaching him is a recent fabrication arises from negative evidence that the witness did not speak of the matter at a time when it would have been natural for him to do so and so that's what we have in this case the negative inference the state is bringing the negative inference that he had the opportunity to claim self has to say now because he's sitting right there so they're making it clear that the defendant is saying this self defense claim for the first time now that he's sitting right there that he's never told this story before when in fact the state knew that that was not true detective sims police report indicating clearly clearly that the defendant said he was acting in self defense that a bunch of guys were surrounding the car at the time of the attack and that filters was repeatedly punching docking and all of these things were in the report now at the time of trial the state did not dispute that those things were in in the report that those prior consistent statements alleging self defense were in the report but the jury wasn't allowed to hear that because the judge did not allow the prior consistent statement let's must say we agree with you for the sake of argument here this morning that there was improperly oh out there negative inference we're seeing her i mean that your client the defendant testified basically gave up the case and he was found guilty i don't i don't see where you can say that this was even remotely close i think that's what we know that this was a close case here because this was a credibility contest we have the defense witnesses  the trial well i'd like to say that it's the state's burden to prove that this is a it's harmless but on on these kind of facts where you have a credibility contest where you have the jury acquitted him of the more serious ch mean you know that goes well with the second issue in your case you're saying that he was prejudiced by the gang membership stuff coming up and word here that this jury was so prejudiced they acquitted him of attempted first degree murder hinges on whether or not the jury was going to believe his trial testimony that it was acting in self defense now that prior consistent statement that he claimed self defense from the very beginning would have rehabilitated his trial testimony but as it was specifically said and it has quotes sort stated that he shot the victim in self defense that guy kept hitting doc and that he believed the guy was trying to knock him out so he could take his jewelry and that there were a bunch of guys around the vehicle at the time defendant had claimed self defense from the very beginning but they exploited the trial court's ruling because they knew that the jury wasn't going to hear those statements and they argued to the jury that those statements were never made that they never existed that the that the defendant has never claimed self defense before and so he's sitting right serious charge and i just don't see the prejudice well the prejudice here your honor it is clear when we have a case that's a credibility contest that's what the case law says when the case when the case is the issue of credibility are you going to believe the state's witnesses or the when he first spoke to detective sims he mentioned self defense it's undisputed that it's not in his written statement and in order to accept this theory if they are mr schorr he has that all along i maintain that i acted in self defense the jury would have to have concluded that the assistant state's attorney the literally left  there during the handwritten if they have to also go to the issue that the jury then would have had to itself up with absolutely no evidence to support that in fact mr short told the a t state's attorney i acted in self defense and she deliberately left it out of his written statement and he didn't say anything when he read over it said i'm signing you can say well the miscible so and then think case and then attempts to keep the jury from hearing any evidence that the defendant was allegedly a gang member or defense counsel made a two part motion asking the court to allow defendant to either making it known that he's willing to do anything to keep this evidence from the jury and soul of the trial judge said no i want to make sure i understand what you mean by unseen and defense counsel made clear  then the court said to the effect that i don't remember you making this motion that before when it was brought up the second time and in effect it was because this was a first time here for  is this where i really have a problem with your brief page thirty you say the court granted the motion and cording here quote stating that it did not recall the earlier march that's not what he said what with the trial judge said as i recall your motion and then the judge recalled exactly correctly what counsel's motion was the either or and there he preferred to have it as a bench and that was denied so the judge recalled it correctly and transcript that we read and what you say here that the court said that it did not recall the motion i just don't think that's accurate you know what i'm saying is when counsel asked the court to reconsider a motion to reason that the first time this was brought up defense counsel knew if his intent was to plead guilty but the judge wasn't understanding him and he didn't say no it both ways and he was representing his client and this defendant got a really good job of representation he was acquitted of attempt first degree murder i don't know how you can you know claim anything else seems like the lawyer did a good job the jury listened to everything to jury heard the admonition from the trial court about the gang evidence then they were told that you're not going to hear it and the jury acquitted him and found him guilty of something that he basically testified that he did said i mean affect it so the judge when he just kind of dismissed the motion he never specifically addressed the ineffectiveness claim which leads us to argument three that counsel was operating under a reason for it to consider motive in this situation is because with the defendant unlike with a witness state witness perhaps the defendant has an underlying motive and once he's charged with the crime that you cannot separate out of the equation when you consider his prior statement about certain things not being included was the fact that ok well you're saying this was included in there but you did have a chance to read the statement and you did have a chance to sign it just to clarify the process by which he had written statements are made for the jury that if you know he did not see who was hitting him he said he was attacked from the window he assumed it was the defendant i mean the victim because he was shot all he said is he felt something on his face but he did not testify that he saw any object in the victim's hands and in fact going beyond just the  testimony of the to the victim and found it there was no object or weapon recovered from the scene the victim was shot right outside his car he may display just a short way to where the party was and he landed on the driveway there's a short distance this weapon would have been recover agreed and said yes i would want this question asked the jury because there's a gang charge pending he only after he decided to plead guilty after the jury was picked he asked to dismiss the jury the jury had just accepted as fair and impartial y accepted without complaint every one of those jurors each juror agreed when asked if they could be fair and impartial considering anything and they all agreed guess we can be fair and impartial and there's no proof to the contrary that these jurors were not fair and impartial those the fact that each just a couple points about issue one and she choose your honour's the state asked this court to follow the rules and keep the rule in people vs grisette regarding priors consistent statements but i'd argue that this court will follow its most recent precedents appellate courts most recent president in regards to issue to your honor's the precious was not only the fact that the jury was inundated with reminders that the defendant was was a gang member but also because of the next blade reason why those to convict those two charges were removed from their purview which could have left a jury could have led the jury to speculate that the defendant was convicted of those that are maybe it's speculated that the state didn't have the proof and they dismissed the charges we don't know but something because he's responsible for the shots that's assuming a jury completely disregards the trial judge's instructions well i mean to say that again evidence is just inherently prejudicial whether the jury says inundated he bullied without objection that this jury could be fear so i don't understand how they become unfair based on evidence they didn't hear correct they did not hear any gang evidence clear to the trial court and none of this would have been an issue it was an issue because the trial lawyer was playing both sides with the throw and if that is the case then i ask this question find the counsel was ineffective for that for thank you for the arguments and the briefs both well done we will take the matter under advisement and issue a ruling directly we are adjourned we have no other case of ten thirty