morning your honour's it may please the court the public defenders in this case scrambled at the eleventh hour to put together a murder case and in doing so they failed to object to inadmissible testimonial hearsay and also conducted the investigation necessary to form substantial showing that the out of court statement was inadmissible testimonial hearsay by living both vixens right to confrontation and his right to effective assistance of counsel second this court should remain and for a new trial because the public defenders also were ineffective in failing to ask again biased questions during jury selection training in my first inspection mr dixon made a substantial showing that the out of court statements were inadmissible testimonial hearsay with respect to this issue and second as a point with respect to the standard review because the second stage dismissal the burden on mr dixon was only to make a substantial showing of a constitutional deprivation and this courtroom view is the no the statement by mr jones in this case was inadmissible for two independent reasons first because it was hearsay and second because he was not cross examined it's a confrontation clause violation pursuant to crawford with respect to hearsay excitement of the event predominated which is the standard set for by the illinois supreme court in people versus williams the right course look at several factors to determine whether the excitement predominate at the time that the statement was made for factors in particular and none of the four factors indicate that the statement was an excited utterance the first fact is the amount of time elapsed and the amount of time in this case is significant this isn't what you would think of as an excited utterance prototypically where something bad happens there well it straight to the extent that he was unconscious when the police responding to the scene came they were not able to interview him at that time because it was unconscious they call for an ambulance and yet he came to take him away it's not correct at all to say that he was unconscious for two and a half hours once the empties him and took him to the hospital mr jones was out of a police officer site that entire time and the information attached the petition this case indicates that he was in fact awa and responsive to personnel for example and which brings me to the second factor which is the presence of intervening circumstances there were numerous intervening circumstances because the record indicates that he was awake conversing with the aunties conversing with personnel of the hospital based on the petition for example it's clear from those records that he woke in the end you once you spoke with the e m t's in the ambulance he spoke with medical personnel at the hospital and at some point you were sedated before he had surgery on the way which goes to the extent to which he was excited hand you eventually did speak to police officers two and a half hours later was heat excited did the excitement of the initial event predominate and the record cannot be any more clear that he was not among other things he spoke to medical personnel and told them that he had used terror when that he had a history of seizures that he can't move his left during that he had no family in the area he signed a chicago fire department form agreeing to treatment agreeing that he would pay for treatment these are not things don the record indicates that it's not true and the third factor that course look at to determine whether it's an excited utterance is demeanor and again there's nothing in the record to indicate that the backwards to mean or when he spoke to the police officers was excited and  everything that we already know him including the fact that when he arrived at the hospital they took his vital signs what pressure was normal his heart rate was normal his breathing was normal things that would be associated with excitement had subsided and this was two hours before you  of the police officers by the time you spoke with them it was a calm interview and the fourth and final fact of the war of course looked to is whether the statements were spontaneous or whether their response to the questioning and again the records clear that the statements in this case were a response to questioning by police officers you know i'm not suggesting the officers nothing wrong and they didn't they were doing their job they did with they should have done all i'm saying is that it doesn't meet the test for excited utterance i think that's clear on this record now there's also a officers hours after an event occurred in the course of investigation are classic testimonial statements that are in admissible and without cross examination of the state argues in its brief forfeiture by wrongdoing but again the facts in this case not support the argument forfeiture by wrongdoing reporters specific intent to prevent the victim from testifying with respect to some other proceedings against the defendant we don't have any of that or we don't have represents and this court already found underage to peel and the state argued  summation that the purpose of this was again retaliation they were trying to punish him there was no foresight there was no looking towards some other proceedings in fact there was no other proceeding against the defendant so they said there was another proceeding at all involved some person a little tony focused forfeiture by wrongdoing very narrowly on a class of defendants who intended to prevent a person from testifying against them in another proceeding there's no facts to support that in this case therefore the crawford claim is a valid one we also have to look to prejudiced under the crawford standard which was articulated by the illinois supreme court people versus thankfully and the rule is that crawford violations weren't reversal unless the state can show that the improperly admitted contribute to the jury's finding of guilt beyond a reasonable doubt and you can't say that this case there were there's a large amount of evidence indicating that the beating occurred or that the victim died six days later as a result of bleeding spleen in the hospital with there's very little direct appeal this court found it was admissible but there's a large difference between saying a statement is admissible and a statement has very much weight and in fact it was crucial for the state have something supporting the confession because of the circumstances under which it was the  in this case what they supported it with was the statement of mr jones which was inadmissible without that statement there left with just the highly questionable statement time mr dixon of the offense and in fact even presented with the in a missile testimony of the jury in this same reasons there's prejudice under the strict one standard because again the separate all of this is ineffective assistance of counsel for failing to present this argument at trial and say no it's not an excited utterance it's hearsay the should be left out to my second between whether evidence is admissible and how much weight the judicial forwards the evidence so while probably in a close case given the fifty hours of confinement here this court has previously held that the statement was admissible that doesn't mean that it's very strong evidence of guilt  know hearsay statement there's not one other piece of evidence in the record corroborating this questionable state turn in my second contention this for sugar man for a new trial because the public defenders were also ineffective for failing objective we got a reasonable which is the test under the first prong of stripping both of the public defenders essentially testified that gangs didn't have anything to do with our vets and we would submit that that's not good enough because again certainly had everything to before jury selection could formulate intelligence defense strategy before conducting court here in and deciding important things like whether you're going to ask yang biased questions during voir dear with respect to prejudice the ell supreme court has repeatedly emphasized that yang bias is prevailing among potential jurors especially in metropolitan areas like chicago and this is the central aspect of this case again retaliation by get this or disciples it's perfectly reasonable who'll people coming in be selected for a jury of the some of those people are going to be biased against gays in general maybe even gangster disciples in particular and in fact the public defenders in this case admitted that they had asked again bias questions in other cases and in dixon and the illinois supreme court cases emphasizing the extent of being biased or shrine and people versus smith so for all these reasons the scorcher remained of the circuit court first of the criminal conviction itself and at first blush it would seem that this case is no different from your typical postcondition claim and yet it is because the office of the state a powerful it defender has failed to attack incurred from that brutal sustained beating and the only defense available was the one that was used how did bang jones die coombes fault was it aspect of a game case it discords and counsel would read the record it would become painfully evident this case was an expert vs expert because that's what this case was all about ben versus house there was a victim who was alive and conscious for two hours while she received medical treatment for birds that statement was admissible and people this is doubt shall i victim was locked in a car with a corpse for medical personnel in the emergency room people we have no idea if a consent to pay was a nod or a moment and to state otherwise is absolutely incredible the passage of time in this case with these twiddly relevant we don't know how much of the two hours our victim was unconscious but in light of the fact that these police officers were standing at the emergency room door for two hours trying to get medical clearance to talk to this victim to find out if they had to meet an emergency on the street or if this was a specified attack is contrary to any claims made by this petition on those statements were absolutely improperly admissible and frankly it doesn't even matter because let's remember what the defense was in this case i dispense tried by seasoned while attorneys trial attorneys who understood that they needed to keep the juries focuses focused in one place there's a saying if the state's attorney's office never to chase the defense and i would imagine the public defenders also have a similar my truck of not chasing the state's case consistently testified we wanted them to keep their eyes on the prize is a shim of death and they nearly succeeded and we know that because the jury sent out a no can we find him guilty of first of sacking or third degree murder they were going exactly where those public defenders wanted them to go they had bought into that defense alternately they convicted the defendant of first degree murder court ever only senseless it doesn't matter if they didn't ask about gang bias it doesn't matter if that excited utterance came in it had nothing to do with the defense causation of death any seasoned experienced trial attorney would know that and indeed you have the explanation of seasoned trial a chinese explaining that very issue to business and that's another reason why the doctrine of forfeiture should be applied in this case it's most likely to best the violence case which we illustrated in our brief games only survive because of fear and intimidation and in fact the front page of the tribune today illustrates that very point of the slain officer that was murdered last week along with the chicago public housing authority officer i mean come forward because of fear and retaliate and threat you don't tell our business not just with little tony but i broke the code of silence is what allows the gangs to survive that's the very type of testimony that the doctrine of forfeiture is designed to protect attention on a few things that the defense attorneys did jail they filed a motion to suppress that's not an issue before this court that is an argument made by defense counsel today to learn this court into something that's not  on one issue and i motion to dismiss was granted on the other this court is strictly confined to a strickland versus washington analysis now prejudicial error not the weighing of the evidence and that's an absolutely improper argument people  asking that this court strike that and frankly the defendant's confession according to the u s supreme court in arizona versus foreman that foreman id is the most damning evidence against him contrary to what counsel has told you earlier the statements in this case were not testimonial they were a quick question what happened testimonial evidence is evidence that is designed to be presented in court and affidavit that care and consistent defense and defense that nearly worked for all the reasons we stated in our brief and those here today the people of the state of illinois would ask that this honorable court very briefly roger may please the court counsel's argument cast more heat than light on this issue there was very little in the way of legal analysis and anything that was just said so i can respond very briefly that responding to our last legal point about to this case involve police conversation with the witness hours after the event occurred and again in the davis case the supreme court made the distinction between a nine eleven call which is an immediate response to an emergency and again a conversation with police officers hours after an event occurred and you sort of investigation hours later like the issue in this case is very clearly testimonial counsel also suggested that we did attack with offense and i would