assaulted a twenty five year old counselor from his residential facility during a prolonged and vicious attack inside the van the defendant repeatedly sexually assaulted the victim badgerly and orly the defendant was later arrested at his residential facility in the presence of its director and other staff and the police attempted to notify the defendants the c f s caseworker the defender was treated well by the police he was mirandized and he meant manifestly understood the interrogation process and admitted to sexually assaulting the victim in the absence of any evidence or even an allegation of coercion inducement or mistreatment of any kind the trial court probably did not have the defendant's motion to suppress finding that his statement was voluntary the trial court also recognise that the police complied with the juvenile court but in order to satisfy his heightened evidentiary burden and establish a constitutional on the sesame for such evidence the defendant had to do more than hypothesize that the victim's consensual sex with the boyfriend in the days leading up to the sexual attack could possibly have caused cervical inflammation the trial court recognized that the defend his theory of admissibility was tenuous and she probably exercised her discretion after balancing the defendant's interest in the evidence and the purpose in the spirit on morgan under the totality of the circumstances the defendant's confession was voluntary no threats or promises or any evidence of coercion he was treated well he manifestly understood the interrogation process he could read he was not handcuffed he was questioned at a reasonable hour for a short period of time he never requested the presence of a concerned adult and a concerned adult was not prevented from conferring with the defendant so don't you think that the police officers could meet greater efforts to get in officer did undertake were reasonable and i think that that decision is correct she requires it was two minutes between the time they called and they started there were two minutes between the two phone time the phone call was made to the to the defendant casework however the court overlooked it and i think the trial court correctly recognized that the defendants the director of his residential facility was an actual notice of his arrest his therapist who actually brought him down from his his room were an actual notice those individuals are expressly concentrated by the by the notice provision of the journal product that requires a reasonable attempt to notify a person who is legally responsible for the minors care or the person alternative measures or things that the police could have done i think that's that would be true in any case even though even though the juvenile investigating officer was investigated and then became image into the officer to watch over the best interest of the and is then permitted as well well i think the there is no we not even an allegation that the youth officer acted inappropriately in terms of not notifying  particular individual over another particular individual i think what this court said in murdock is that regardless of the efforts taken or the reason on this that notice notifications there has to be some actual evidence  help to know that this particular defendant and some special needs but i think the police were on i mean they certainly knew that he was in residence at a residential facility they were obviously expressly aware that he was a d c office work and i think that's why they took additional efforts they did make a phone call and to the extent that the interrogation started to two minutes as your honor pointed out after the phone call was made i think it's nowhere the that the case where they didn't call back for two days and at that point that their claim would be then what the defender was in custody for far too long before the interrogation commenced there is a twenty four hour requirement the police have to bring cannot hold the miner in custody for longer than twenty four hours so the claim could always be well that they can wait till monday but the question is whether the actions undertaken by the police in a given case actually cause a course of environment or cause to use the language it kind of  actual immediate notice of the defendant's arrest and where where he was being detained police conduct always turns on reasonableness and it with the benefit of hindsight well what could the police have done differently under a very widely varying set of circumstances it's always subject to second guess and just like ineffectiveness claim the subject the second guessing while this would have been a better strategy well as langtry was in our briefs is that while it can always be argue that they don't apply the incorrect individual but that the fact remains that there was expressed in strict compliance with the statute and mr keyhole was the entity expressly contemplated by the juvenile court act of the purpose of notification mr herbert i want to pick up on something that just as we're talking about your sort of special needs and maybe bring into the mix at this point the cross appeal on him effective assistance of coun trial counsel did not bring up what i believe was the seventy two i q and the psychiatric problems of the defendant and in light of the fact that the trial judge concluded that defendant was quote was suit he was who understood things if the back door had been brought to the attention of the drone judge wouldn't that have impacted the whole to tell you the circumstances or our position is not that that that evidence would have been irrelevant to be clear that that evidence would have been irrelevant to the the determination of whether or not his statement was voluntary in response to defendant's ineffectiveness claim the his attorney made a well reasons to keep it decision to focus on the circumstances of the interrogation rather than his mental health history and i think it's important and i think my point overlooks this that the results of the behavioral clinical examination showed that the defendant was key both making a bouncer statement that stop you on the strategy aspect because my specific question is mental capacity of the accused is one of the factors in totality of the circumstances to be considered so i mean to say that court's findings of her own personal she actually used the word demeanor i remarked that the defendant as he appears before me is an astute young man he's wise beyond his years and she did say that that's not saying that his mental state is older but she functioning this court has recognized that the trial judge to sit in uniquely adventitious position to make that assessment and i think the defense attorney the defense counsel decision to attack the voluntariness of the confession on the circumstances of the interrogation rather than his mental health history was it was eminently reasonable i mean he had he had very unhelpful information from the  make a statement involuntary and in this case the defense attorney's primary strategy was to attack the circumstances of the interrogation on him because it's ineffectiveness claim it turns on prejudice so the  half of that coin is the defendant is not sufficiently prejudice he hasn't established a reasonable probability that he would have succeeded on his suppression motion had introduced this evidence because all this evidence that there was unhelpful to him would have come out and there's no other shield statute is to prevent he merely and embarrassing a sexual assault victim with evidence of her sexual activities that have little or no bearing on whether or not she was sexually attacked for that reason such evidence is presumptively inadmissible unless the defendant shows a constitutional necessity for the evidence the appellate decision has greatly diminished the protections of that statute now the defendant is allowed to circumvent the rape shield statute on tenuous theories and speculation that a woman's consensual sex with her partner in the days leading up to an attack might have caused an injury rather than the attack itself to be clear this evidence is qualitatively different than ordinary evidence the statute itself expressly requires a heightened evidentiary showing of relevance and probative value the at the injury exception to the rape shield statute as it is come to be called does not stand for the proposition that any hypothetical alternative source physical evidence is admissible any evidence in any case that's remote or uncertain or speculative is inadmissible in this case defense counsel simply hypothesize that the victim's sex with her boyfriend three days prior to the attack causes cervical information rather than the attack itself there was no offer of proof beyond what the testimony would be and that was that the victim had had kneejerk ruling this was a well reasoned well reason to exercise that discretion she balanced expressive balance the defendant's need or interest in the evidence with a purpose  the spirit of the rape shield statute was which is to present prevent this evidence when it has no bearing on whether or not the victim was sexually attacked in order to establish that the defendant was denied his sixth amendment right of confrontation it's not enough to show  that another public order appellate counsel would have allowed the evidence in the defendant is not prejudiced in his ability to present his defense when just based on the single limitation of cross examination and that's what this was in this case the test is whether the limitation of cross examination created substantial danger of prejudice by depriving him of the ability to test the shoes of the victim's testimony in this case there's no fewer than eighty pages of cross examination where the defense counsel challenge the victim her credibility her ability to recall in alleging consistencies in her testimony and her failure to make an immediate outcry the fair was not prevented from asking general questions about us about consensual versus for sex he wasn't prevented from question the doctor about cervical redness in general this doctor had performed thousands of public exams and hundreds of sexual assault exams he clearly would have had an opinion as to how long cervical redness would be expected to last after consensual sex and in closing argument the defendant was fully able to articulate his theory of defense he was are able to argue what he perceived as ambiguity in the source of the redness so in that sense he was not reverse that decision here a critical factor is that the officers effort to find a concerned adult amounted to no effort at all the officers made an effort that was guaranteed to fail that was guaranteed to ensure that no one who cared about ronald was able to confer with him before the interrogation or even knew that he was arrested the officers relied on a voice mail to a caseworker that they knew would not be received much less returned in the two call without any knowledge of whether she would be able to receive this phone call or return it and within two minutes begin their interrogation what about the notice to the facility director that worried were the shining is actually house notice of ronald's arrest wasn't enough and that sort of it's important to take a step back and look at what the concerned adult factor is it's about more than just providing the statutory notice that the juvenile has been arrested it's about providing someone who would confer with the juvenile before and during the interrogation someone who would look out for his interests during the interrogation but it should have been obvious to the officers that keyhole could not serve in that capacity and so keyhole and everyone else who might have been standing around in the facility while one of those arrested had notice of that arrest is not sufficient to satisfy the concerned adult factor here so the fact of the matter is that you know there were a number of things that the state clearly to me that the officers could have done which is the the officers could have called the d c fs twenty four hour hotline it's probably the most obvious thing that they could have done to yes so there's a guardian's office there's another option they could have done yet another option is that ronald had family in the area ronald had just visited family on an overnight visit that day so it's you know possible that one of those family members could have served as the concerned adult the officers here didn't pursue any of those options and left a message and within two minutes began their interrogation of ro schizophrenia who designed like a truck with medication and that's the kind of situation where a concerted belt is most necessary where you'd want the concern adult to act in the child's interest during the interrogation with respect to the youth of officer factor sometimes the youth officer can act to offset the absence of the concern of adults here kaminski was actively investigating the case against ronald he interviewed the i'd like to also briefly address this court's recent decision in murdock because that was a four three decision on a question of a juvenile's confession and whether that was voluntary and it's important to note that even the majority in finding the confession voluntary agreed that the concerned adult factor weighed in the juveniles favor and in that case you had a grandfather who showed up at the station here you have even stronger evidence of police play or bad f beginning their interrogation after leaving a voicemail that they knew would not be returned before they began their interrogation with respect to the great shield issue the state's argument clears what is really a very clear and straightforward issue the rape shield statute must feel as to evidence is constitutionally required in the law in illinois and the cross the country uniformly states that under the defendant's constitutional right to present a defense you can present evidence of a possible or plausible alternative source of the state's physical evidence and that's exactly what we have here the state presented evidence of the complainant cervical injury and argued that this physical evidence was proof that ronald gradually penetrated complain own expert who had brought him to bring on this evidence and that expert couldn't tell when the injury had occurred he couldn't determine how it had occurred only that it was consistent with sexual intercourse so at that you know the state has tried to sort of paint it as wildly speculative and hypothetical that such an area of redness could last for three days but the fact is that in this case this particular injury was shown by constitutional necessity well the relevance as it's been explained outlined in the case law and the case law says that a possible or possible alternative source is relevant evidence  believing that he had shown the need the constitutional necessity for it and then that motion was denied at that point it would have been highly inappropriate for defense counsel to go back out and try to tease out of the expert well could this cervical injury have lasted for three days that's something that obviously alludes to prior sexual activity the kind of thing that's are under the rape shield statute even  grabbing we had already heard from the officer during his testimony if he could make a determination as to when this occurred so or how it occurred only that it was consistent with sexual intercourse so the state's own expert  that there was d n a found in the gradual swab from the boyfriend and so it's not you know speculative or hypothetical to think that with respect to this injury it could have occurred during that prior sexual activity in the stadium kind of expert testimony we had an expert i mean it was the fact is that the state put this expert on to present the cervical injury and then argue that that was proof that ronald and it treated her because law says that all we need to show is that there's a possible or plausible alternative source we don't have to sort of directly link it to the prior encounter and if we were to try to do that that would sort of in respect to cervical injuries but even looking at those journal articles that uniformly state that the general injuries can be sustained and last for three days or so homeless no the state would have to prove that it's harmless beyond reasonable doubt here the police preserve constitutional issue and here the case basically boils down to credibility contest between the this being a credibility contest this was a case where the jury deliberated for nine hours over two days and what's really you know relatively short trial so this was clearly a case that troubled the jury and this cervical injury was the complainant testified to so this error clearly not be harmless in this case the state also points to the trial court's ruling as having balanced the appropriate factors and made the right conclusion here the trial court had it exactly backwards the trial court ruling on this issue said that the expert did not say that this injury was the result of a rape it would be different if he found an injury consistent with forced sexual acts  court had it exactly backwards that would have made the evidence completely irrelevant so should the extent that we're looking to whether the court abused its discretion here the court completely misinterpreted the rape shield statute and would like to pick up work to counsel left off guard to the rape shield statute to be clear the people agree that under extraordinary very compelling circumstances a defendant may be allowed to introduce evidence of a victim's sexual history to explain the physical evidence of a sexual assault but that's not the point the point is that the the defense proffer the basis for his request under the facts of this case were speculative and that's why the  was occurred or when it was inflicted the answer was no betty is that is quite a different question of well let's take that a step further because i'm i'm a proponent here i'm trying to breach the rape shield statute i have to show a heightened expect it to last three minutes three hours three weeks that's a totally different question and if the defense says the proponent who is seeking to overcome this extremely high burden of introducing this evidence he has it's not enough that there were a review in court will come to a different conclusion the judge had at her disposal very limited information that came from the defense as a basis to to p and with that limited evidence she made a very very good exercise of discretion and balancing his very his his interest in that evidence and the purpose and the spirit behind the rape shield statute the you know my my point point points out that while the state uses evidence to make the argument that the cervical redness was caused by the attack well the state had no more evidence with which to make better argument than the defense had to make their argument and the state argued that it was evidence it was a reasonable inference during closing argument to argue that that was a reasonable inference based on the evidence just like it was a reasonable inference from the defense perspective to argue that it's as they did it's meaningless it's means nothing it could be caused by  i don't have the quote in front of me it could be caused by anything it could be caused by a rash even the doctor said that it was complete could be consensual or forced sex and i think on that score we haven't it is harmless it  most it's harmless beyond a reasonable doubt because he got to make that very point in his closing argument with regard to the medical studies that are in our brief and there are many and what they state is that while it is possible that consensual sex can cause cervical redness it is highly rare it's unlikely and that when it when it does occur after consensual sex it disappears within seventy two hours so even if the defense had officer did at the time and i think it's important to point out that this court morgan said that if the failure to make any effort to notify a concerned adult doesn't warrant suppression then then a lack of evidence or other things argument can always be made if the if the concerned adult is the mother of the defendant she's also the mother of the victim so then automatically the police and notifying the family of a family members automatically disqualified even though that entity is  sly contemplated by the juvenile court and the point is that the police again it's a question of reasonableness of the circumstances it's impossible for the police to implement a rule of law were not enough because the director of this facility had some connection to him but he also had a connection to the victim and that is an unworkable rule and again it turns on reason illness and with regard to murdoch the in the effort to distinguish murdoch and gio and morgan are illusory those cases don't just turn on the facts they stand for rules of law and and propositions that are well settled the appellate court just didn't follow them in this this case and murdoch  anything approaching that in this case even that was not enough to suppress the defendant's confession unless the participation of the us officer or the absence of a concerned adult those facts actually cause the defendant's will to be overboard and there is absolutely no evidence of this of that in this case and i think it's important to point out that the allegations in the trial court were not that the defendant coerced that he was mistreated or that he was induced to make the statement  this there was no evidence of mistreatment on the contrary there was evidence that the youth officer in the police treated him while he was in the higher range to use a language from for more murdoch he's not handcuffed he was offered food and drink he understood the interrogation process he understood his miranda rights the trial for fine it's found all these in her ruling and those comport with the the findings of the psychiatrist that despite his mental deficiencies and we're not saying that he's not a troubled youth he is clearly a troubled young man but his mental deficiencies did not impede his ability to give a voluntary statement so for those reasons we've asked this court i recognise that this is  decision cannot be reconciled with murdoch morgan or geo or the juvenile court and the decision cannot be reconciled with the perp this is function of the rape shield statute which is one of the very few statutes that's designed to protect victims of crime