for this court should reverse mr hudson's conviction because the trapper proceedings below were riddled with errors that infected almost every stage of mr hudson's trial for motions in limine a all the way through closing argument and jury instructions and a this identification was admitted with out of hearings to the safeguards mandated by the illinois supreme court and people versus thompson when the state is in reducing the law enforcement officer identification testimony that maintains that this is harmless error arm however this most certainly is not harmless error first cellphone presents first billy's identification of mr hudson goes directly to the main issue at trial which is the identity of the offender the state's brief can seize the significance of billy's testimony which it characterizes as quote necessary to help the jury resolve an issue of fact and yet the state also argues that admission of the same testimony is h because the evidence against mr hudson is quote overwhelming and it's completely contradictory to argue that this exact same evidence is the necessary to the state's case but that its admission at trial is also somehow harmless error and the state's own characterization of this evidence as necessary demonstrates that it's admission can not be harmless but you're you're not suggesting that mr bail i saw this video and i saw the stills from the video and i know that person just like any other member of the public could say oh well it is true that mr bailey knew mr hudson there were still a couple of issues with the admission of his testimony first we do know that mr bailey did that next room mr hudson i think it's important to keep in mind that that was when mr hudson basically was ahead this was significantly nature of the quality of the duration of these contacts on the for example or we don't know all that comes from those who are excluded at some point before the trial the reasons why and lieutenant only knew kept out of the trial on purpose that is correct is a we all know them when they're not in the record but at the trial the trial counsel and the defender and public defender and the judge certainly yes that is correct but the jury did not know the jury knew very little about mr b at least relationship with mr hudson and also our defense counsel was not really able to do a meaningful cross examination of this so when we look at bally's identification in the first place all we need to remember that this initial identification was based on a video still it was based off a video still of a person with a mask on and this film was of such poor quality that when bailey testified he couldn't say whether the print was back in right or in call it so we're dealing with the really grainy photograph that bailey identified hudson from initially so that is kind of very important to keep in mind that this guy is his former neighbor and he's claiming that all of these years later he's either through look at this really brainy video still i don't know if you've had the opportunity to review the exhibits in the case but this still is really not very clear so it's testimony this to introduce billy's testimony so they keep that identify mr hudson is the man on the video still for the jury but mr hudson was sitting at that defense table in front of the jury for several days so it was really sort of clear that mr hudson was the person on the video still in the seat wouldn't have needed wouldn't have needed bailey to connect the dots but they did because of the poor quality a bit the still in the video and i think it's really important to keep that in mind when we are reviewing this evidence and the case here also the cross examination at trial the defense counsel did was really shorts on the defense counsel clearly went into this with very little of an understanding of what bailey was going to say the only thing defense counsel really knew was that they only used to be hudson's neighbor and that believe had seen hudson about fifty times over the last fifteen years in his capacity as a police officer so the defense  believe to affectively cross examined your family i'm sorry didn't mean to cut you off there that's a really good question because in this case did it really would have added a line to the case in defense counsel's ability to be  ineffective and to take care so under townson the fruit of the law enforcement officer identifies the defendant as the person in the surveillance video in front of the jury and they're supposed to be a cross examination outside of the presence of the jury to give defense counsel an opportunity to it's the areas that might elicit current bad information on cross so that the counsel can make it a more informed strategic decision during the cross examination in front of the jury in this case it would have been really hopeful for counsel to ask hudson and i'm sorry it would have been really helpful for defense counsel to be able to ask mister bailey one about the circumstances under which he had seen mr hudson for example we don't know  him fifty times in passing or they had a long sit down conversation the week before but also i mean realistically had there been in this hearing off the record and the fifty  times that officer bailey shot and mr hudson were in his capacity as a police officer right how likely is it that defense counsel would have wanted to explore the details see that's exactly the point we're all sitting here making all of these negative assumptions about the fount that mr baez or that mr bailey saw mr hudson fifty times in his capacity as an officer but we don't know what that means they need to have been on the trail and happened to come across woods and fifty times only dump a trail that's certainly within his capacity as a police officer but there's no negative inference to be drawn from that that so i didn't tell him bailey has happened to come across mr hudson fifty times while he's on the trail it is certainly very different than let's say maybe he was arrested mr hudson it fifty times you know and busted him at the police station you know we know that's not true based on the information the p you know but that's just the kind of shale the wide range of inferences that the jury could be drawing here and it just right your honor it immediately injure a negative inference royce on fifty times in his capacity as a law enforcement officer so you know no good information can come out of that that's exactly the point and that's exactly why we need to have the opportunity to outside of the presence of the jury another thing that is particular to this case is  good defense counsel had the opportunity to cross examine mr bailey outside of the presence of the jury if this would have been a particularly for real grounds for cross examination in this case where we have no physical evidence that ties and i don't mr hudson out of the phone or pray would have been a fertile ground to examine officer bailey about in terms of the change in the finest appearance i don't recall i don't remember that argument you know you're on and off the top of my head i don't recall whether that specific point was raised in the brief i was trying to respond to your question about how cross examination om could have impacted this case if that was not in the brief i apologize for to this court and  line but that would have certainly been fertile grounds for cross examination and also we really know the basis on you know for example how billy identified hudson in the video did he it was it something about his face was it his movement was it is posture you know we really don't know because again the initially dedication was based on a video still in this grainy video so it also would have been for the around the cross examination for defense counsel to inquire more significant difference in terms of all blowing defense counsel to do a thorough process in front of the jury found under thompson and the decision as to whether the law enforcement officers identification testimony is going to be admissible should not be made until after this cross examination outside the presence of the jury is happened because that allows the file court to make a more informed decision regarding the evidence that will be admitted at  years you know so well yada yada yada at the time billy made the identification and he didn't even know mr hudson's name he looked at the still and said i think that guy used to be in my neighborhood his name is brother shorty buck or something like that so is claiming to know this person so well that he can identify them off a grainy video still but at the same time he doesn't even know this person's name and i think it's important we keep that in mind when we're evaluating the testimony the evidence and the  om because it's clear that the trial court didn't comply with the safeguards in thomson the issue for this court to decide is whether that was harmless error and not not only because of his familiarity with hudson but also because of both the clarity of the reporting and the extent to which the defendant is depicted and this implicitly of knowledge is the their quality of the video  that she had an adequate opportunity to observe the person who was robbing that she identified him in a lineup notwithstanding the fact that she didn't pick her pick his picture out of the phone or play and then you have a video that shows an individual entering the metro station right before the armory and exiting the station holding what appears to be a person is he and twenty five seconds later i that our days testimony was enough there were certainly more their weaknesses in holidays identification testimony it that we raised in the briefs are go through them very quickly she had a very clear opportunity to view the offender we know based on the timestamps on the video that the offense took place in less than thirty seconds and we know that the offender was moving a mask up and down on his face good from where in my completely accurate description of him oh any identification descriptions or anything like that it was not until she identified him in the photo away that she mentioned the scar on his face and that's significant because she huge two photo always the same day she viewed the lineup so by the time she views the lineup this is the third time she seen his face that very same day and that certainly is significant because by the time she views the lineup of course she recognizes him she seen his face multiple times especially because no one else from the photo arrays appeared in the lineup also right before that lineup officer robertson called her and said we you come down to the police station because we have the offender in custody so she seemed to photo always with walk in there's only one person is in the same photo arrays then she goes down and use the lineup mr hudson is the only person who's been in both of the photo arrays she's expecting to see the offender recognizes mr hudson because she's been seeing him all day and she identified him this is certainly ahm there also was over a month between the lineup and the offense and she didn't know hudson before the offense which also we know that that is also a factor where a miss identification is significantly more likely when one doesn't know the offender but miss is this holiday's identification it was not that strong because there were all of these issues with her identification it was really bailey's testimony that burst of her identification important at witnesses at trial because he really betrayed that identification but going into trial defense counsel did not have the information that they need to do what they're oh possibly time it barely on because they didn't have the opportunity to do this benefit one will actually see on direct examination of mr bailey was very similar to a standard direct examination of any law enforcement officer he identified himself as an officer he gave his experience and when they asked him how he happened to come to see the video still in the first place he explains that he rose on duty at the riverdale police station and that day during read all they were asked to the video is still so rare what it means seemed to us to be a significant i really don't think the jury would have picked up on that because he basically testified as he introduced himself to law enforcement officer he started talking about his experience as a law enforcement officer and then he explains how he came to want to see the skill of mr hudson in his capacity as a law enforcement officer so i think that arguing he was not testifying as a law enforcement officer particularly bearing in mind that this was a jury trial not a bench trial i don't think that that's really a significant distinction for this particular case that may be different from other cases but in this case i really don't think down it's a significant distinction based on the nature of his testimony and his status as a law enforcement officer is also important here because that does give his identification more weight with the jury because we know that he's a lawn horse and officers jury instruction are right there was a jury instruction that they're not the testimony of a law enforcement officer should be viewed the same as any other witness however there was no jury instruction as me aided by thompson that the jury was free to disregard belief identification testimony that they and that they did not need to give any weight to them at the warrant they were not instructed that they should not draw any adverse inferences from the fact that he's a law enforcement officer but if in those instructions are required by thompson and the instruction that the jury is not supposed to give any weight doesn't have to give any weight to his testimony that is supposed to be given before the witness testifies and with the jury instructions at the end of the trial and that was not given either time so the lack of jury instructions also contributes to th honor what she said and i didn't pick anybody our because they didn't look like they did in person at focusing on any particular person in the photo  honor i have a few brief points on her but all first the state did not argue in its brain down at least testimony should not be considered as law enforcement officer identification testimony because he wasn't an officer that was involved in the investigation on down argument was made for the first time today in this court and accordingly it is waived on that second well we're dealing with here is it's very clear that the safeguards that were outlined in thompson warrant are out so the issue is better that there is far less than what about what about mr alexander's point that the the purpose of the safeguards in time send is to prevent a law enforcement officer who is otherwise a no you're with the defendant from talking about prior bad acts i know him because i arrested him i knew him because i saw him dealing drugs norm in all these different contexts and that didn't happen here in enforcement identification testimony can be inherently prejudicial and that's why we are these safeguards that we use the only with want horsman officer identification testimony but now with other identification testimony so the entire existence of thompson implicitly acknowledges that this testimony has a right to good to be unduly prejudicial that's why we need a separate decision that addresses this and we already did that in some respects to limit the testimony  and they also did not follow some of the more important safeguards that were outlined by thompson which were again really briefly cross examining outside the presence of the jury and those jury instructions and here on the as to the testimony because clearly he could identify right i think that the error is in meeting the testimony with our employing the safeguards because the c funds are designed to protect the defendant from prejudice thereby protecting his right to  contemporaneously advice that you read the testimony of a law enforcement officer identifying a defendant is not to be given any greater weight it's they out here that you say deny him a fair trial we're saying that the failure to utilize all of these safeguards listed in thompson it is the error and it includes that jury instruction but it also includes the opportunity to cross examine the law enforcement officer outside of the presence of the jury before the law enforcement officer testifies in front of the jury because down below around defense counsel to fully explore any weaknesses in the identification during cross examination also as to the use of it i want to touch on prosecutorial misconduct very briefly on because the state touched on that and also it does interrelate to the billy's testimony here on the state acknowledgements argument today that the state didn't mistake holidays testimony regarding her certainty of the identification but on the same token h was not i love just these photographs and he wasn't there and wasn't there at the argument that the defendant made in closing that is correct but so we will ask your kind of to mischaracterizations of what she said i think it's important to keep in mind though that the state misstatement here the rooster the holidays identification because it created this image of a witness that wanted to be so certain and that's why she didn't make the identification so it created kind of this identified this is part of the reason why we allow that want horsman identification testimony in the first place but here with the stated in closing argument was made by the state holidays identification and they also believe stored believes identification and those are very serious