property was required and any records made by law enforcement authorities pertaining to this property the prosecutor goal represented the state of the first trial responded that the discovery had not changed since the first trial but that he would hate i well it was during my uterus opening statement he was just explaining the evidence that they were going to present and he just mentioned we are going to present evidence that the defendants fingerprint was found on the tar mean that point in time defense counsel made an objection but it was more so because of the fact that he thought that the information was incorrect it wasn't for the fact that this was a discovery violation it wasn't to the fact that th it was the only thing that provided direct physical link between mr graves and that the other evidence consisted of testimony of a confidential informant and the fact that the drugs and drug related items were found on mr graves property and therefore was constructive possession this was the same evidence that this court their arms again not overwhelming on direct appeal after this first trial the prosecutor claimed that there was no surprise this was during his opening they went through the first trial without going to see them makes that is because they claim that they were testifying based only on the doris number but if you go back to the transcript from the first trial you'll see that at least one of those witnesses was asked well who was is the other one and i also think that we need to put these two witnesses on the scene and ask them how they are so certain the second time around that the charges were switched they never really said how they were able to distinguish between us and whether it was mistaken they went to report here for the second time they looked at the pictures and they said wait a minute these stars which and so he said my thoughts on this at this point are i'm going to let you cross examine them with their prior testimony he said i'm going to let him say  don't think it's been subjected to a thorough cross exam one final point i think it's import you know that evidentiary hearing is needed to address these questions that were raised by the discovery violation and ultimately determine whether t change test no but it all comes down to this how come you didn't know this is the pool that's the only question that really comes up in this is why didn't you notice this before when you read that record in this case when you going to impeach the software that's all there is to do is impeach these officers with their prior testimony and i think it's reasonable to say i already know this i really found a case of people versus countered very persuasive on this because a lot of similar issues were raised and what it comes down to is that i have heard the court says really think them closing argument is the price of defense counsel was able to use there in addition to his cross examination i think he brought it up out of nowhere no i don't think that he brought up the fact that he was surprised it was clear that there was a prior hearing you know he did that evening after the first day of trial where he you know had time to prepare for his first again and for all you know possibly to talk to these two hours serious and had time to do some investigation to the point is we don't know that and we won't know that