good morning my name is charles hoffman i represent the appellant russian tillman after a jury trial mr tillman was convicted of murder and aggravated discharge of a firearm we brace for issues on appeal today i'd like to address the speedy trial issue and if time a first claim is that the trial judge abused her discretion when she granted the state's request for an extension of the original speedy trial term which was going to expire on february ninth because in this case the state failed to show to the judge that they had exercise due diligence to obtain the presence of their missing witnesses before the speedy trial term expired the state's motion was filed on january eleventh which was about a month before the end of the speedy trial term but it wasn't argued until february first and there were three witnesses involved here randall williams one l hicks and live on taymor and for purposes of the issue williams and hicks have one factual pattern and mr moore has another williams and hicks had both been served with subpoenas way back in september of zero nine but they failed to appear and warrants were issued for their arrest the state's motion allege that since that time that is since last september quoting attempts have been made to locate and compel their appearance but at the present time they cannot be located by the state's attorney of cook county that's it that's all the motion alleged needs of the state's motion nor the prosecutor's argument in support the motion informed the trial judge what the terms had been made when were they made who made them what the bay consist of there was absolutely nothing the other thing is the prosecutor didn't tell the court what if any attempts had been made to locate hicks and williams from the time they had filed their motion on january eleventh until they argued their motion on february first not a word about that  and in the absence of any such facts we don't see how it was possible for the trial judge to conclude that the stated exercise due diligence to find mr williams and mr has asked  here's what the state allege that they had made unsuccessful attempts to serve him with a subpoena again way back in september october november of zero nine and again on january fourth of twenty tat however they did successfully serve mr moore on january fifth with a subpoena but what mr moore did was in the presence of the state's attorney's investigator crumple up the subpoena throw it to the ground and announce that he had no intention of what more do you want them to do i mean you're saying those are right now it's a simple well there's two parts to argument one is they didn't give the judge any facts about what they did we don't know what they did and neither did the trial judge the other kind of argument is if you really think about it justice smith due diligence has two components the first component is you have taking the tools that you need to compel the witnesses to come to court and you're right just dismiss the state did that here we're not claiming the state did nothing they served subpoenas they got rules to show cause they got arrest warrants what we don't know is what they did and to utilize those tools the first step of due diligence is to obtain the tools to compel but the second step is to actually utilize the tools we don't know what they did with those warrants but they take them to the witnesses house and they take them to the witness of work we don't know what they did because the record is completely barren about on any facts it's one thing to obtain a no bail warrant it's a completely other thing to go out and  exercise due diligence and serve the warrant it doesn't do any good to get a warrant if you don't serve it which you know what they're says in your procedures are going to i if you could educate me i'm not sure what their standard procedures are i what they're supposed to do but i think a judge should require the state to put on the record what they actually did because i'm if the the trial judge may know what they did a judge said not a twenty six street may be very familiar but i don't think a judge can just assume more i'm not asking them to do more i know what you're what i'm asking them is to tell the trial judge what they did so that she can exercise her discretion so in normal court the cases that we cited in which due diligence was shown there was no problem with the state in those cases putting very detailed specific factual assertions on the record about what they did it's all in the brief but let me just pick one  random the morgan case from this district in one nine hundred seventy eight states investigators made numerous calls to the witnesses phone number listed in their files check medical records several trips to an attic address supplied by public aid spoke to the witnesses brother the cases go on and on like that and as a matter of fact just a smith all four of our cases are from the first district and you read most and those cases show what do diligence looks like  so with regard to hicks and williams we're arguing we don't know what the state did they may have exercised due diligence we just don't know because they failed to give the trial judge one fat one single fact about what they did other than a very fake assertion that they made attempts to locate the witnesses now it's different as to mr moore we know what the state did as to mr moore they serve a subpoena which he crumpled up and threw on the floor but here's our problem with what the state didn't do as to mr moore when they filed their motion on january eleventh they put in the motion he crumpled up the subpoena said he wouldn't comply and if he doesn't comply on february first if he doesn't show up then we'll ask for rule to show cause and seek a warrant but your honors on january eleventh a full month remain on the speedy trial term which didn't expire until february ninth why wait another three weeks to see if mr moore was going to show up especially when the clock was ticking on russia tell me its constitutional right to a speedy trial it made no sense for the state to say yeah he crumpled up the subpoena he threw it away and you know if he makes good on his threat and three weeks we'll go find them what they should have done in order to protect mr tillman's constitutional rights which they have a duty to do research more the next day with a subpoena with a return date of january eleventh that's a month before the speedy trial term runs if he makes good on his threat he doesn't show on january eleventh they can go get him they know where he is now him into court and proceed to trial in this case within the speedy trial term but the state didn't do that they just what they basically sat around and waited for three weeks while the clock was ticking  argument is because the state failed to give the judge any facts at all about what they did with regard to hicks and williams and because we know on the record the state didn't do what they could have done to protect mr tillman's constitutional rights that the state failed to make a record which is their burden to show that they exercise due diligence in this case to find and locate and bring their witnesses into court and because they failed to show the judge that they exercised due diligence she couldn't exercise her discretion because she didn't have the information and therefore it was error for her to grant the state's motion and for that reason we're asking this court to reverse mr conviction because his rights to a speedy trial were violated ok now as the argument was there testimony in a trial there are various witnesses indicated that they weren't all that interested in testifying or yes being a tattletale yes justice lab and the witnesses were clearly uncooperative and there was the argument that if that specifically that invited comment how is that fair commentary and what came out of that miles of various witnesses will he here's what happened why is it so unfair it's unfair because it's not based on the evidence and it's not a reasonable inference from the evidence and think about how prejudicial it is to say that the witnesses didn't come to court because they were afraid of the defendant who was charged with a murder here's why it wasn't invited if you look at the record it's clear that the trial prosecutor really tried to get her witnesses to say they failed to come forward in every witness failed to come forward although they knew the defendant didn't come forward for weeks and months until each of them picked up their own case on unrelated charges and within a day of each of them being arrested themselves they said they said to the police hey let me tell you about this murder so defense counsel said these guys didn't come forward until it was in their own interest to curry favor with the state that's why they came forward because they got arrested themselves and all of a sudden it was in their interest to come forward well the trial prosecutor tried to get the witnesses to say they didn't come forward because if you're the defendant and she started doing that with leading questions to which objections were sustained for example and redirect of patrick our this is the state's attorney council asked you about why you didn't talk to the police is it safe to talk to the police as a witness objection sustained are any of the currents for your own safety objection sustained but when she asked carter a non leading question why didn't you talk to the police that night here's what he said i just didn't want to talk to them she tried again redirect why don't you step forward as witness in a murder case mr carter it just ain't something i do where is the fear of the defendant and they had an answer now we're seeing argument where you're saying that they were the argument says they beefier but where's the argument where he says afraid that the defendant's going to do something well the legal standard i think from the moment can i say i'm just trying to follow up on what you said right well  seven rebuttal well to be fair to the state there is the tattle comment but i'll answer your honor's question before i get to that the question is not whether they named the defendant the question is whether their comments suggest that the witnesses didn't come forward out of fear of the defendant so all it just has to be an implication of the argument the mauling case is the leading case and if you look at moland the prosecutor in that case never named the defendant we we quoted in full the the  argument counsel talked at length about nobody come forget we've got a right here a place thirty nine i wonder what possible reason who would somebody who just witness one of their friends being gunned down maybe i don't know fear they live in the same neighborhood who she talking about they live in the same neighborhood as the defendant russia tilman they have the same acquaintances who she talking about the witnesses have the same acquaintances as the defendant they have the same of his it seems to be the one that points a finger understand your argument but in the case where with this after witnesses like i'm a cooperate here and i don't want to have anything to do with it isn't this kind of suggested by the evidence itself i don't think that fear is suggested because the closest anything came to fear was the tattle comment by mr bowden mary if you live in that neighborhood you don't want to be somebody who tattles but here's the problem with the prosecutor's argument that relies solely on that tattle argument first it only came from bothering carter as i've said before said i just didn't want to come forward and nobody asked mr moore why he didn't come forward so how do we is the only one who made the these witnesses failed to come forward not because they came forward in their own interest because they were arrested as defense counsel said they didn't come forward because these are the type of people who don't like to talk to the police these are people who don't to cooperate with murder investigations these are people who don't want to ruin their reputation in the neighborhood by coming forward that would have been a proper response to defense counsel's closing argument but that's not what she said she took she said the last thing she said to the jurors before they retired to deliberate was they have the strength and the courage and strength of character to overcome their fear and take that stand and point their finger at the man who killed that juror now none of those words had anything to do with the evidence in this case where is the fear what you know where is the strength of character she talked about knowing the ramifications to them for fingering the person they saw do this crime where is evidence of any ramifications as an mala if you look at mo in just a slab and you know if you compare the argument here to the one and mo and it's very very similar both of them talk about use your common sense fear fear fear there were a number of things she could have said that would have been entirely proper but she didn't say those and it's also important to consider that defense counsel's objection to this argument was over rules which obviously left the impression in the jury's mind that somehow this was proper and you know the the reason the case was there was an objection that it was preserved it was preserved and not only the mess that's a red letter day not only that justice levin it's in the post trial no yeah i know that's to read and that's why i'm standing here arguing this issue but i think it's important that the objections were overruled because that left the impression with the jurors that you know the reason for the rule the reason for the rule about not letting the lawyers argue things that aren't in evidence is because under the home in case the supreme court said the jurors may conclude there's something that the judge in the lawyers are privy to that we're not  reason for the rule is so the jurors don't conclude that there's something they don't know about i know and and the other implication that left which is why it's so prejudicial is if the jurors conclude that the witness has failed to come forward because they feared the defendant i think they're going to view the defendant in a different light and may think this is a guy who's more capable of committing murder if the people in his neighborhood including convicted felons like these witnesses and every one of the state's witnesses was a convicted felon if even these ex cons are afraid of russia tilman jeep certainly more likely that he may have committed this murder so because there was no testimony about fear because fear was not her rational and reasonable inference from the actual testimony we are asking this court to find at the prosecutor's closing argument was  improper and prejudicial and we're asking you to grant mr tillman a new trial trial and i thank you very much specific statement attributing that to the defendant if i may quote from that case why don't you want to get involved they don't want one of these indicating to a gun in their back that's not what happened here we do have witnesses as well documented throughout their testimony their own willing to come forward not only with the unwilling to come forward both on closer and more testified that they actually left the neighborhood on the night of the shooting we have testimony from m boucher that he didn't even anticipate testifying in this case all these people indicated an unwillingness to testify do you think they're going to testify in an attempt to get out of the scene so the question is then why a completely reasonable inference to draw from that is fear and i would direct this court to its previous decision in people versus cox where the court discussed whether the fear pervasive in the neighborhood based upon a shooting a neighborhood where these people neighborhood where the shooting occurred some page thirty seven of the people's grief that's much more analogous to what happened here here you do have an instance where people lived in that same neighborhood and were simply not willing to go forward there is no basis in the record to say that that can be attributed to anything specific and that does essentially pinned on the defendant and it's that pending an act on the defendant that did not occur in moment which renders mullan irrelevant justified and directly pointed that out and said point to one thing that linked defendant to these acts you talk about being gunned down running away from the neighborhood you use your common sense they live in the same neighborhood they have acquaintances is it safe to be the one to point fingers which is made clear that they did subpoena that had not yet arrived or to reset a trial date when they had already fancy a case to set the motion is simply a bath and beyond any case has ever been held for this or i would drop one last station between the case the defendant claims that there was a lot of due diligence and that would have been in people versus durham and in that case there's a third district case where the people did nothing there was no reference anywhere in the record that it wanted to look at in the arrest or you know a live report and made no phone calls had done nothing and i would just oppose that against this case where you did have warrants rules to show cause attempts to make service and in fact successful service on one i'll also start with a closing argument in mullen counsel said the press were held up a gun i don't know if it was a gun or a bullet but if you look at mullan the prosecutor didn't say the witnesses don't want one of these but she didn't say from the defendant's gun or the defendant's bullet there's no mention of the defendant mullen there's no mention of the fence name here but in both mullen and in this case the clear implication that the prosecutor tried to leave with the jurors was that it was fear of the defendant and i'd also as i mentioned in my opening argument miraculously all three of these witnesses overcame their fear the day after they were each arrested which i think also makes it not a reasonable inference that they failed to come forward out of fear and all of a sudden their fear left when they when they each got arrested on the speed trial issue due diligence the definition this court has given to deal with gents is a continual effort to locate and bring the witnesses into court and i think if a witness crumples up a subpoena and announces that they are going to not comply with the subpoena it's not a big burden on the state to simply serve another subpoena for an earlier return day if the defendants constitutional rights to a speedy trial are ticking away that's not too much to ask and i understand i have the burden here to convince this court that it was error that the judge abused her discretion but in the trial court the burden was clearly on the state to show the trial judge that they had exercised due diligence they didn't meet that burden down there which is what allows me to meet my burden up here and finally at the risk of an imperfect analogy and this goes to efforts to bring that witness isn't the court and i say again it there is the risk of an imperfect analogy in connection with my argument that due diligence has two components if my wife asked me to shovel the snow off the driveway and she looks out the next day and there's still snow there and she looks up the next week and there's still snow there and she says to me what's going on you said you were going to shovel the snow off the driveway and i say well i've been diligent the day you asked me to do it i bought a snow shallow i've got some rock salt what's the problem well the problem is it's one thing to get the tools you need to do the job it's another thing to use the tools i don't think i showed  by simply buying a snow shovel and a bag of rock salt and i don't think the state shows due diligence by getting a subpoena by getting a rest warrant and then not giving any showing to the trial judge about what they did with those tools the standard is if you're going to ask a trial judge to extend the speedy trial term beyond that required by the statute which the statute designed to implement and protect the defendant's constitutional rights you have to give the trial judge all the factual information about what you did to compel those witnesses to come into court before the speedy trial turmeric i don't know if the state did that as to williams and hicks and neither did the trial judge in this case and for that reason we're