question i would like to concentrate my arguments on the confession and the rape shield violation and if i may i'd like to begin with the rape shield issue actually very briefly and that's argument to in the brief  the state listen to testimony from the examining physician that emily had an area of redness on her cervix and that this injury was consistent with sexual intercourse the state also presented evidence that eventually swab was taken during the intercourse three days earlier this evidence would have showed a possible alternative source for the injury to emily's cervix and that it came about from someone other than ronald the trial court however excluded this evidence reasoning that it would violate the rape shield statute but this reasoning was wrong to deprive ronald of a fair trial under the constitutional exception to the rape shield statute evidence of the victim's prior sexual history may be admissible when that history explain some physical evidence such as physical indications of sexual intercourse and that is precisely what we have here we have an injury to the cervix which is physician says indicate sexual intercourse and ronald was prohibited from confronting that physical evidence with evidence that it could have come from another person and that would have demonstrated that there was supported violence testimony that he did not have national intercourse with family and the state argues that this wasn't relevant but it certainly was relevant because the state deliberately elicited the seventh's and then during closing argument use this evidence of the injury to prove that there ronald's testimony ronald testified that there was just some consensual oral sex and only testified that there was oral sex along with magical penetration and so the state use this physical injury to corroborate emily's testimony and ronald was during that time there was only consensual oral sex so it would have supported his testimony and again you know the jury was out for nine hours deliberating on this case the jury obviously thought for the folks the balance testimony and makes this an even closer case and that's why it's necessary to reverse reviewing the voluntariness of the juveniles confession extra scrutiny is required and there's an additional very significant factor that the courts must look at and that's the presence of the absence of a parent or an adult was concerned for the juveniles welfare nd certainly did not make a reasonable attempt to contact a concerned adult on the halls behalf is two reasons one is that he was an active participant in the  in terms of typing it up and reading it up and reading it back to ronald i'm so he was an active participant in the investigation against ronald and so in no way he even you know neutral in this case  also you know she's not you know he didn't advise ronald that he could be charged as an adult so that the trial court recognized something that you would expect a youth officer to do the you know whether he actually was the youth officer of the some five police officer as we use the term so i just viewed that he was actually used the officer in that regard we just viewed as whether he could you know offset the absence of someone who's concerned for rivals welfare in this case in your you know find someone who could confer with ronald before the interrogation began i'm convinced his actions here you know were rather poor attempt to do that he contacted the director of the home where ronald was staying at about nine fifty before the questioning began that officers could have contacted someone and ronald's family even though he was a ward of the stay it's reasonable to assume that he's got family who could be contacted he'd had a foster father and a foster mother who had business just the day before or as stephen he has defied you can call the d c fs line twenty four hour hotline after hours even if it's an abuse hotline presumably someone from the c f s can answer the phone and help guide the officer to someone who can come and confer with ronald before the interrogation began and so at a minimum you know even if the officer didn't do anything to affirmatively protect ron's right the officer at a minimum should attempt to find someone and community failed to do that here that's an important factor in the voluntariness analysis because we know juveniles are susceptible officers rushed to interrogate ronald and in fact within an hour and fifteen minutes or so the officers had assigned typewritten confession ready to go in this fifteen year old you know who'd been arrested earlier it was  mental retardation and that brings us to sort of the second prong of our argument is that trial counsel should present a more of this evidence of mental impairments a motion to suppress because you know just like juveniles people who are mentally retarded are susceptible to police coercion people with mental retardation have you know diminished understanding comprehension thinking reasoning skills that make them so you know want to please the person who's questioning th the wishes of their already figures and so it was important for a trial counsel to get that information out to the trial court during the motion hearing ronald had an i q of seventy two as you said the reading level that ronald was reading out was the second or third grade reading level so obviously his ability to use the reading comprehend the written statement was limited ronald had been treated for a number of psychiatric illnesses like bipolar disorder a depression when it was a child who was born with cocaine in his system so he was someone who throughout the course of his life you know had a number of psychiatric disorders and in fact on the in the statement itself ronald tells the officers that he had been taking his medication for bipolar disorder so trial counsel should have presented this evidence to the trial court that would disappear there supported the case that this confession voluntarily taken and fifteen minutes so that's you know probably an unusually fast time for police to have that confession and so the fact that ronald's you know is apparently mentally retarded and has these mental impairments sort of explains the swiftness of his confession and that he wants to please the people who are questioning him that isn't realize you know the consequences of his confession and it also goes to address the trial court's finding that ronald was put a very astute young man if you look at the literature cited in our brief it's undisputed that people with mental retardation often become very good at masking their impairments and that's likely what happened here that said you know take away the confession you're left with a very pure credibility contest where ronald testifies the trial renounces that confessions as he signed whatever was given to him versus emily's testimony which was impeached in some ways and so the jury is really just balancing these two confessions are these two testimonies and the jury had a problem or at least you know thought the case was closely balanced enough to deliberate for nine hours over two days response to resume yet there's a spot cited in our brief that says that that's a factor that you can look to to determine sort of the closeness of the evidence you know we were not able to view the witnesses as they testified the jury did and the fact that their jury testifies or she's and the fact that the jury deliberates over two days for such an extended period of time you can presume that it means that the case was closely balanced give them a lot to think about and discuss during their deliberations and then the prosecutor relied on this confession in his closing statement told the jury to go back and look at the statement as evidence of what happened so it is something that the prosecutor used in support of his argument tory statement his confession the trial quote properly denied the motion to suppress and i want to point out that there is there's no evidence and there's no claim on appeal that there's evidence in the record of threats of coercion or of compulsion of any sort that issue is not even raised and that's because the arrest was valid his detention was brief he was questioned for forty five minutes he was in custody for a total of ninety minutes before the questioning even started you agree two people there they left messages for but they never notified d c at this well they they did notify d c f s a left their detective left a message for his caseworker it was a sunday night it and ten o'clock it's the institution where he his parents couldn't control him so they seeded yesterday set us yes it is an institution no attempt was made to contact them i disagree with your honor ok house because well first of all he's a resident at the residential treat taken to the schomburg police department he was there he actually gave permission i mean there's the record is there's two versions but the trial court credited that u s officers version of the events that mr keefer gave permission to speak with the defendant the efforts have to be undertaken to contact a concerned adult and that was undertaken in this case the fact that a concerned adult was not actually present for the state for the statement or physically appeared in the police station there's no per you know and i think there's a case called call koski that speaks directly to that and said it's an argument to defend a reason is his brief he says well why didn't they return monday there is no requirement the police are not required to delay or postpone questioning of a juvenile simply because a concerned adult has not actually been contacted with their new military reach the concern though is the here he had his that the parents did not have custody of the of the defendant he had i think he had a of gone to his place of residence you know there may be myriad things that the police arguably a theoretically could have done but that's not required under under that under the law according to g o g o says that there is no per se rule and to ensure that the defendant is informed of his rights that he understands his rights and he's not course he is not an attorney at law he's not a cop advocate for the defendant there is no obligation that he has endeavored to cease kaminski that he had given permission to speak with mr patterson so the record actually does not show that they just made sort of a pro tem to contacting people and then their media they went into interrogating him they actually had permission he doesn't have to don't they are really concerned with that the supreme court has said as of course yes it's a sensitive concern and what was undertaken in this case amply satisfied what this court with the supreme court has said in gio that the sort of the that efforts are unsuccessful to obtain a concerned adult a parent a guardian an aunt and uncle or grandparent that is not a basis to suppress a statement when there's no other evidence and i repeat there's no claim on appeal that there is any threat scores in or compulsion of any sort so the fact that a parent was not there the question is whether or not the police officers use officer under took reasonable efforts to notify that the concerned adult were sort of beyond beyond what they already beyond what they had to do you know if this is a situation where someone's arrested a fifteen year old arrested it eight thirty at night there is simply no requirement that the police wait to conduct their investigation of an aggravated criminal sexual saw a woman as is raped every which way that they're supposed to sit there in wait to hear back when whenever the case worker gets around to return their phone calls which incidentally occurred two days later and i think it's important not the trial judge in this case noted that well if they had i think her words were if they had sat on the defendant if they had waited and he was stuck in the cell for fifty hours which is would have been fifty hours total by the the longer the detention prior to the questioning then the defense claim is that while they waited too long that he's sitting in there and that if they now the claim now is that they did it too quickly even though they understood efforts to notify people that were concerned for his welfare and that they were unsuccessful in those attempts does not inform whether or not the statement he gave us was voluntary or not the rule is that the use officers that the police they can't prevent they can't frustrates the efforts of a concerned adult to be present or to confer with a minor that didn't happen in this case it's alleged in the defense brief that they prevented that from happening there is absolutely no evidence whatsoever they prevented anyone from conferring with with the minor before they spoke with them i think the answer to that is there was always in hindsight there was always what a shot a could oh there's efforts that they could have done what they could a set of smoke signals they they could have a if they call the hotline the hotline is reserved for allegations of abuse or neglect in them and i agree it's staffed twenty four hours and it's for emergencies and could a call to the hotline conceivably have put them in touch with someone probably and they were to put them in touch with sandra smith who they already had a phone number never left a message for her anyway so i would have come back to her it would have come back to the residential treatment center where he was already being  absolutely there is nothing that you concern this court about the voluntary and there's no claim that his state was was they backtracked there was a claim that it was involuntary there is absolutely no claim there's no evidence that it was threatened or the product of evincing his belief that there was a bona fide doubt as to his fitness and he specifically ordered the b c x for purposes of fitness for sanity and for his ability to knowingly understand and waive his miranda rights and the the examination came back and showed his he has a conduct disorder has no psychosis no mood disorder he's articulate and goal directed his logical the claim that the defendant was mentally retarded while the expert in this case the examiner her cell phone he is not mentally retarded so to argue on appeal that well his i q is seventy two it's sort of close to the statutory definition of mentally darted retardation for the the for capital punishment statute that's so someone can claim that they are mentally retarded they can't be put to death a statute that's currently being product the product of change because we don't longer have the death penalty i don't know why that is not sort of evidence that he was mentally retarded in this case what evidence regarding his mental retardation in this case or lack is the expert who actually examined him and found that he wasn't mentally retarded so i think in the defendant claims that while the defendant is able to mask his his mental impairments well he apparently he's syria depth at that because he he you know that the police had no qualms about they had no belief that he was that this that he was unable to waive his miranda rights that he didn't understand it was just the it's but he has no cognitive disorder his low intelligence and it's i mean the case as we say in our brief house worth mahaffey randall may have is a supreme court case evidence of limited intellectual capacity alone does not indicate th almost identical claim where it was this evidence was in the record and the claim was that counsel was ineffective for bringing the evidence of his psychiatric history to the trier of fact in hopes of suppressing a statement and this court at the first district case rejected that claim quintessential evidence that the that the brick shield statute is designed to prevent in the trial court recognise that in this case and we are going to brief the defendant didn't even establish relevance first of all that threshold even forgetting shield act and for getting the right to present a defense merely failed to present any indication that this was relevant he had evidence that there were sperm in the victim's vagina that and i think it's common knowledge that that can last seventy two hours so what the defense attorney did i think this is a nuance he he sort of transmitted that seventy two hour rule that pertains to the sperm to suggest that whether redness itself could last seventy two hours therefore the defendant wants to make the argument to get rid this is absolutely not your honor in fact that the defendant actually capitalized on this in his argument he said it's meaningless and it can be caused by priors consensual sex the defendant got to make the very point consistent with the rape shield that he was not allowed to ask this victim herself and did you have sex with your boyfriend within seventy two hours and that he had jacket like that is evidence that the rape shield is designed to reserve evidence that said that seventy two hours  ok and is there you're told me that there should not have been bruises from that consensual sex i'm saying that there is no the defendant made no offer proof and made no claim that consensual sex with her boyfriend would cause red mr nervous cervical information there was no evidence of that redness to the cervix this is not nothing not not to do with the bruising which is clearly was evidence of a recent sexual attack in this case the defendant he never made that he could if he could have asked the this state's expert he could have said well hypothetically he's an expert he can testify to hypotheticals you can testify to his understanding and knowledge of treating and examining sexual assault victims in your experience does redness to the cervix last longer than seventy two hours he didn't ask that that wouldn't have been arguably would not have been precluded by the rape shield act because he's not asking about this particular victim's sexual history which is which is what the act again without repeating myself is designed to prevent  specific acts of sexual conduct with persons other than the defendant have no bearing on whether she consented to sex with the define it it's axiomatic that's the freeman decision and again two thousand and ten the case of the defense relies on to this sort of suggests that decided to michigan i think believe the michigan supreme court case that that stated that since sand of all that rule regarding physical evidence usually it's in the innocent child victims vagina is applied to child victim cases jr mason even freeman itself twelve years old twelve years old seven years old those cases speak to the sex of the presumed sexual innocence of children so when there's a rape case involving a seven year old and she has a twenty women that is the biggest red imaginable that does not translate to a twenty five year old woman where the there probative value is so far diminished that that's the whole point of the the merely relevant it has to be constitutionally required that is a much different standard then than merely relevance mere relevance as this court is aware is very low standard but it's not constitutionally required and that the state or the defense was able to  to ask the victim this information to elicit testimony either from her or statements that she made to another person regarding her past sexual history the defendant could have asked the expert myriad questions about evidence of sexual first sexual intercourse and what else do you find what else do you typically see after consensual sex you see this you see that how long does the redness last he didn't ask any of that he wanted to specifically ask questions about this sexual history and whether that was a strategic mistake is is maybe a different issue but he didn't ask questions that he probably could have asked from the expert about the redness he just he wanted to go f he wanted to go full bore into well now i got an excuse to bring out this this victim's sexual that that she's having sex with her boyfriend and the implications are clear to tell a jury here's a young woman who's seven sex with her questioning the the santos case it's an illinois supreme court case it's very very similar to this case and it speaks to what sort of what the defense was trying to do aside from establish her sexual history or discuss or  play that it was relevant you cannot use this evidence to discredit discredit a victim and suggest that she's lying and that's exactly what he was trying to do in this case suggesting that his her testimony that he not true that she was wine in his trying to use this evidence that she had redness and her cervix that she had consensual sex is proof that she's lying to discredit her to impeach or and santos is very clear you cannot do that to to him to so for all those reasons on those particular issues with us this court or from the defendant's convictions and his sentences and just one more point going back to the  at the same time he's doing that he had to be compiling evidence against officer in this court has said no that he can't have participation because the role of youth officer is not an there there is a distinction between youth officer and concerned adult are not the same thing so concerned adult as what the youth officers supposed to make reasonable efforts took to procure their presence to make phone calls to leave messages to do what they think is necessary but it's just reasonable they don't have to delay the investigation or the throat in otherwise perfectly legitimate police investigation just because they don't they're not able to reach somebody but they're rare then as youth officer there it's it's it's sort of i think the language the cases uses it offsets the absence of a concerned adult so they are not a concerned adult to these to the extent that they're supposed to be they're saying you know ronald i really don't think you ought to talk to these officers you know it's not your best interest why don't we go outside and talk before you you know you make the state and that's and that's the role of attorney and that's maybe the role of a concerned adult the mother of the grandfather the grandmother woods would say don't talk to him and then that's up to him but the youth officer doesn't the case was very clear geo says this and haney haney describes the role of youth officer notify the parents and sure moran is given and sure the defender is not coerced it's a very simple it's a limited role they're not there to prevent lawful valid questioning does that answer your question  repeated phone calls over the course of a period of time to try to find a concerned adult and was able to delay the questioning until the concerned adult came to the station and so that's what we're asking for here we're asking for a lot we're not asking for the youth officer to do things you know to give advice to the juvenile or anything like that we're asking for sort of the bare minimum that he try to find a concerned adult and that's where detective commits he failed in this  where the police were already arresting ronald a key ho had to be concerned himself about the fact that one of his employees had just been sexually assaulted and had his own legal liabilities to be concerned with the police are coming to a restaurant all sure you can talk to ronald you're arresting him anyway so you know for what that's worth it's not a whole lot but also it's interesting to note that kaminski even after he reports to have the permission and he ho still gives a call to violence caseworker you know if you thought that he hosed permission was enough why even bother calling the caseworker to try to you know get any sort of for mission or find a concerned adult  and as for the d c fs hotline the state argues that that's reserved for allegations of abuse but keyhole himself during his testimony recommended that the officer could have called the d c f s hotline after hours as to the mental retardation i would just like to point out that the mind of an i q of seventy doesn't exist just with regard to the capital punishment statute one of seventy also exists in all of literature cited in the briefs you know it's where they draw the line for mental retardation as a general matter and then as for the rape shield issue you know i just like to say that the black letter law is very clear where there's evidence of you know some physical evidence that the defense wants to explain such as physical indications of intercourse that's where the defendant's entitles constitutionally confront so this isn't something where he's just trying to get fourth impeachment evidence on he's trying to confront physical evidence and the fact that he can make arguments and sort of suggest inferences is no substitute for being able to present evidence to support those