contradict the state's chain of custody evidence with respect to argument one the state's evidence in the simple possession case was unexpectedly deficient the state was required to do very little as being those that randall dropped the state did not meet this further the state's searle testifying occurrence witness officer edward carroll lost sight of the n items randall dro a public sidewalk outside with the store amongst a crowd of people in an area that police testified was known for narcotics sales carol did not see his partner recover the dr his defense was that the state's evidence was insufficient yes primarily because it was unable to stablish the chain of custody of this case why would he find out what at the chain of custody well it's the state's burden of consistency with saying you know they were clear at the motion to suppress and then the other officer saying they were clear with a blue tent is there something about that that's really absolutely wro finding the state's chain of custody is a sufficient was blue and i believe that's because the chemist did not even though she was asked never testified that the packets were clear with the blue tent let it stay about her it as to whether there was any consistency between because the chemist cannot testify there is a legal inconsistency perhaps for the sake of her testing she didn't find that to be an inconsistency but if if if what i was here earlier is correct is that there is no consistency between  that's clear with a blue tit and say it was clear there's no inconsistency i see it's clear you're not saying that it didn't have any attempt to the issue of course what was that was recovered in inventory thought you didn't cite any cases and i'm not aware of any that would give the public defender the right to answer ready for trial without you having checked out the necessary witnesses and i don't think that the subpoena that you say was issued for the officers somehow transfers to another charge there is no case law that would allow an attorney to rely on somebody else's work to present their case i have two points in regard to that record saying i made a mistake so we know that if we're looking at that the alternative argument that counsel's performance was not strategic here this was an oversight if the subpoena if it were then subpoena was required in that case then kelson would be about the testimony in the opera proof that the judge said he considered how best she could she considered excuse me have had had bad testimony actually being considered it would have been the state's burden then to explain this discrepancy and there was no explanation salut the question actually could not have considered this testimony is there a discrepancy when you're talking about of motion to suppress versus what's present in terms of the testimony given a motion to suppress i was there a discrepancy when proof was clear and red at that contradicts the evidence of blue packets and how the judge considered that he would have she excuse me would have needed to consider an explanation as to what right there was this discrepancy in this nation has ever offer with there with the blue tent and with brett there's nothing there's nothing to support this office and he is reviewing court has a right to it offer proof that lets us know there is something there following overwhelming evidence of the defendant's guilt the trial court did exactly what we asked the fact finder to do which is listen to the evidence evaluate the credibility of the witnesses and make factual determinations following the evaluation of that evidence th trial court heard from well of the state's witnesses the officer and the chemist and conclude at that both witnesses testified clearly and consistently that the defendant george randall dropped from his left handed and that liquor store  items pacifically clear blue tinted glass packets of heroin those were recovered immediately by officer town kept in his continuous care of karen custody and then they were actually inventory pursuant to chicago police department procedures and then transported to the owners to this crime lab where they were received by the chemist and that he'd still conditioned the inventory number matched the description on the inventory matched she analyzed that and determined it tested positive for the presence of heroin the trial story at both the motion and the trial was wholly incredible the story submitted by the defendant was that on that day he was minding his own business in front of the liquor store when chicago police officers apparently having nothing else to do came up and planted on him that was his contention that at that there he was picked up in front of the store driven to his house where he the police allowed him to drop off his items which doesn't seem to add up with impropriety one could say of planting evidence on somebody and then being so kind as to let him drop off reports it was not included during an offer of proof following the request for a continuance it was not included that the report was not attached to a motion to reconsider there were many opportunities for defense counsel to make that rice his report part of the record on appeal but we don't have it we don't actually know what it said i would submit that if it did have a reference to brad that it would be a mistake this wouldn't be something that would be any kind of inconsistency in the state's case what's more  he trying to think there's an inconsistency generally speaking between two different colors i would agree or but we don't know that there was two different two different colors mr towne testified at the motion that the packets he saw and deciding whether or not to grant them to well the court actually looked at three factors whether the attorney was diligent in securing the witness whether the evidence that they would like to a list of this material and whether the defendant was prejudiced in the in the ruling and certainly the trial court had the discretion it was within her discretion to deny the continuance following all the evidence that was put on to the record most specifically that this witness was never under subpoena by the defense the defense had never subpoenaed officer town even for the first time this case was set for trial they had instead it officer bora there's no indication the defense counsel had planned on falling officer town each party is in charge of securing its own witnesses and if a diligent well she did in fact finish or didn't she put on everything she had and then ask for a continuance yes it would make a difference if the attorney had asked for continuance before work the proceedings began it very well as opposed to then attorney answering ready putting on going through the whole state's case prosecuting the witnesses calling two witnesses and then saying oh by the way judge ted like continue yes certainly that makes a difference yes ron i would agree with that it's possible he was subpoenaed for a different case and and agreed to come over and to testify in the case against george brando there's the record to silence as to whether he even appeared at the  all the officers were there because the assistant state's attorney said she was trying to figure out a date yet when you're going to have all of the officers back here and i didn't finish my my phrase which was appeared pursuant to subpoena yes i mean would agree that officer town was in court that first state and that the efforts were made to find a court date that would accommodate all of the witnesses we just there anything in the record that suggests that those officers were even there pursuant to a subpoena so  when the judge when the defense attorney said judge would you continue the subpoena there's no way of knowing how this record whether any of those officers were even there pursuant to  you telling me that there is nothing in the suppression hearing is really the word the only place you yes run that is the only place yes the problem is that there's nothing in the record to support that it actually exists something that's correct but at the most it's just press which is in the record in reality or it's simply a suggestion and i think that's that's why the people's position was at trial is today that the evidence was clear and wholly consistent but let me ask you another you not diligent does not necessarily mean that she was so ineffective as to not function as counsel as guaranteed by the sixth amendment so it's actually two different standards a lack of diligence certainly occurred here however she was not so deficient in her performance as all reasonable inferences must be taken in the state's favor and so what we have here is a case where there are consistencies throughout both the motion and the trial and the only suggestion about read comes from something that's outside of the record that we can't fully answer what's more prejudice underscores both of these questions and that the defendant can say that he was prejudice in any any way following the decision by the trial court to exercise his discretion and not grant stories this is what we asked the trial court to do the trial court evaluated the witnesses made a decision and following that offer of proof where defense counsel stated what she would thought she would like officer time to testify to the offer purposefully rejected  as having absolutely no impact on the trial court's decision so i think the question of prejudice underscores both of these for since here yes council was deficient in not securing a witness that she apparently wanted to have testify however equals lack of diligence in you know one bad or one and i would i would agree your honor i think that the that there was a lack of diligence under the what town wrote in his vice case report even if they don't testify about the packets are clear i think this is critical the evidence shows that the test of packets were blue the chemist did not say they were tense it clear she said blue clear time and then finally would this counsel rest deficient when it was clearly prejudiced his defense from the beginning of this case was that the state had not proved its chain of custody this case was continued to that did not come out of the motion to suppress that is friendly to the offer for absolutely