may please the court counsel my name is nicholas crime i'm an attorney with kathleen t s owner and associates and i represent the defendant appellant mr william chabon mr chabon was convicted following a drug trial of the first degree murder of his mother in law i r and scott he was sentenced to forty five years in the illinois department of corrections this is a direct appeal from that judgment of conviction we have raised a number of issues in our brief however there is one in particular that i'd like to focus on here today that is the improper admission of opinion testimony during the testimony of the rodeo opened one scope and to provide a little bit of context as to how this testimony came into evidence droege is the victim's daughter and the defendant's wife drove to and the defendant contacted the police after finding the victim's body in her program on june eighteenth two thousand and seven prior to the defendant's trial the road it was charged and convicted with obstruction of justice and perjury the basis for those charges was that she had lied about her in the defendant's presence in the victim's residence on june fifteenth two thousand and seven which was the date of the prosecution theorized that the murder took seedings at trial she denied any knowledge of the murder she testified that the last time she saw the victim was on june thirteenth two thousand and seven and that she and the defendant went to pack some of her belongings at the victim's residence on june fifteenth and that they did not see the victim prior to them both leaving her condo now during the course of her testimony the prosecutor repeatedly elicited testimony regarding her beliefs in the defendant's guilt and i want to read just a very quick excerpt so the court has an idea of what kind of testimony i'm referring to so the question was posed back in june of two thousand and seven you believed your husband murdered your mother correct answer in two thousand and seven yes i believe this is on page six c sixty two of the record and that question goes on and you believe he killed her in cold blood in her home correct and the road asks if i may ask is it right now that you're asking the question do you believe that answer that he killed her you're asking me question yes answer no i don't believe that he did it the prosecutor then proceeded to impeach her even though she had admitted that in june of two thousand and seven she held this belief the prosecutor proceeded to peter with her testimony given at this prior proceeding where she was asked you still believe that the man you're married to killed your mother in cold blood in a our own home corrective action was correct ok she never testified at trial that now she believes defendant killed right the form of this was the prosecutor initially asked do you did you believe in two thousand and seven he killed her mother and she said yes and then the prosecutor rephrase the question somewhat by saying you believe that he killed her in cold blood in her own home to which she equivocated i guess would be a fair testify that during the course of his investigation he believed he had cause to believe that the defendant committed the offense this court noted that a lay witness may not express an opinion or draw inferences from the facts rather a lay witness is confined to testifying to facts of which he or she has personal knowledge this court held that in that situation because of the list of police officers us that's correct your honor and the state has argued that that is a a way of however i would submit to the court that the testimony here was even more prejudicial for one thing it was not just a question and answer as it wasn't crump the prosecutor here repeatedly elicited testimony regarding to rhoda's current belief and past because i will have to read the hanssen case i don't recall seeing that case in the state's brief it's now but you really do need to read it because it's i would think speaking just for myself it's a very much on point where you know their family member one family member kills his what would have what i would say your honor is that the proper justification for the admissibility of the this testimony in this case was was to show evidence of bias on the part of the witness in my argument is that this kind of belief or opinion testimony is far too ambiguous to admit as bearing on the witnesses bias or motive to testify false falsely for example if you though that a witness thinks that a defendant is guilty without knowing anything else about the case my assumption would be that that witness if anything would be inclined to favor or shade their process their testimony in favor of the prosecution the idea of a i don't want to render aid to someone i believe is guilty of the affects here the prosecutor argued the exact opposite that drove his belief in the defendant's guilt somehow showed her bias to testify in favor of the  which of facts directly surrounding the murder in other words the she did not testify that i witnessed the murder yet she's allowed to offer her opinion that the defendant committed the offense but she said three times i don't play she did do it so that's her current belief is no no he's innocent my poor husband did do this correctly but that the prosecutor then of course used her prior inconsistent statement to impeach her and i think the issue here is this testimony is improper in the first instance then her belief now her belief in the past it's irrelevant it can't come in either way so obviously the prosecution cannot ask a question that's witnesses or excuse me a party is limited to the extent it can cross examine its own witness so for the prosecution calls a witness and it gives an answer it doesn't like it cannot necessarily impeach that witness with a prior inconsistent statement it can only do so if the testimony does affirmative damage to their case you are and correct so does it do it here does the fact that she now says that my husband is innocent of this chart those that have hurt her regardless of whether she testifies a trial that i don't believe that he's guilty or she says i do think he's guilty so i don't i don't think that this testing any that this question should have been allowed in the first place but being that it is a collateral matter the prosecution can't ask that question with the purpose of impeaching her if they don't give her them to question the answer that they want because again this is extremely prejudicial testimony hit here's what i would say as a juror sitting there  if i hear that the defendant's own wife believes that he's guilty why on earth wouldn't i think he's guilty and at the same time it would invite me to speculate as to what it is she knows that she didn't testify to that thousand and seven and again in two thousand and he said well i don't think it's accurate to say that that's one of the reasons they were there i mean the defendant was indicted prior to her perjury and obstruction of justice convictions so that that was not part and parcel of the investigation into whether or not he perpetrated this murder the other thing i would say here though is we have to look at how the prosecution actually used this evidence and they used it even though they said they were it was admissible to show evidence of bias both to testify falsely they used it as substantive evidence of guilt but they were instructed and mr burnet trial the attorneys agreed it could be try tech more attention to evidence that he thought was unfairly prejudicial to which he had already objected and during when the very last things that the prosecutor argued in this case is to row is asked do you believe that man killed your mother in her home she didn't want to say yesterday back in two thousand and ten she said yes she believes it because she knows it too so in other words you can draw you can believe that the defendant perpetrated this murder because his own wife believes that he did it and if was in the case at all is because the prosecution injected it into the case and i think you know it's we can't have a system where we have witnesses getting on the stand saying well i think that the defendant is guilty or i think that he's innocent that's not how we do this i mean for as long as you know the case law goes back and says that a lay witness can only testify to those facts of which they have personal knowledge i agree with you served with the real question is  opinion and expression of the i don't understand how it's not because she testified i believed in two thousand and seven he was guilty i don't know how that's not not an opinion it's certainly not a statement of agree with your honor those statements of course can come in and instances in which she has been with that testimony on a prior occasion most certainly come in those are the kinds of things that go to undermine their witnesses credibility  things like her relationship with the defendant evidence of bias is just evidence that a witness has something to gain or lose by their testimony so the classic example of that is well if i'm married to the defendant i obviously have something to gain or lose because if he's convicted he or two thousand and seven june fifteenth two thousand and seven based on the fact that the she uncharacteristically left work at three thirty am friday afternoon that she was supposed to contact a coworker later that night about plans for the following day and never did when echo what worker called her she didn't answer the phone or return a macit on the next day she didn't show up for the planned activity nor did she answer a call or return a message so last time she was ever seen or heard of spoke to the police on the day the body was found she lied she spoke to the state's attorney she lied she spoke to the grand jury she lied she testified in her perjury trial she lied she gets on the stand in this case and right out of the box she lies and as soon as she lies the state gets into her prior statement inconsistent statement under oath from her perjury trial and goes into the basis of her the reason for her rise of the time she said well why did you lie at this time at that time i didn't believe believe my husband killed my mother so i said this well why did you lie this time and to the extent that she presented her crime belief that was unsolicited and that actually was to the defendant's benefit that her current belief was opinion testimony that wasn't the target of this examination the target of the examination was what did you believe when you said this what did you believe when you said this her state of mind her mo interests in bias to which the jury is entitle to know what she's thinking when she's giving these theories statements so that they can weigh them and decide well is it this one that's true is that this one's true or is it this one that's true well how much you the male d n a under her fingernails belongs to the defendant and between the last time she saw the defendant and the time that she was killed she was meticulous firstly wash your hands because she was also established that it they were in the condominium it three thirty in the afternoon on the phone yes we had another witness but it sort of trial home the point we were in the condominium on the date at the time that the mother left suddenly left work that she was complaining about her mother on the phone she she admitted she was complaining about her mother on the phone she did he have certain aspects to that were important to this case  from from what i can say she was there for the entire thank you she had a financially had a she was going to make gain financially from her mother's murder remember she moved right into that condominium where this mr stranger danger came in and brutally murder mother and within days she and her new husband moved right back into the economy and that's a little odd  so she definitely she she had an interest in this case herself and she had an interest to write her motive in her interest to kill the defendant about alibi to lie about their whereabouts whether she believed he had killed  believe she killed her drove the various lies that she was giving to the various people and these were not opinions these were state of mind motive interest in bias and the closing argument actually drives home the fact that this was state of mind again that was a police officer who testified during the course of his investigation i believe the defendant did it here is not i believe it's i believed when i said this that defendant did it and then i believe when i said this that the defendant didn't do it was tied to her lies and not to a belief that the defendant actually was in fact the offender the hanssen case yes it does use the word believe in it it in and in some respects is also very helpful that the intro the investigation in this case the belief in this case is driving the law it's driving the perjury and the jury's entitle to know when they're considering this these various statements as to whether introduction of these prior inconsistent statements as you correctly note it wasn't just impeachment it was one fifteen dash ten point one because it was prior testimony inconsistent testimony under oath so yes in addition to being impeachment which it was i peaching it was also could be introduced under that unless there are any other questions it's state's position that this was state of mind evidence not opinion testimony and we ask that you  i don't mean to harp on this i think sometimes when you do these appeals you develop a little bit of tunnel vision but the one thing that i'm not hearing is a reasonable explanation for how her belief provides her motive to testify one way or the other her relationship with the defendant yes if she had a financial motive to testify a certain way yes priory can if she had a poor relationship with her mother yes i'm to the extent she gave prior inconsistent statements on things that are not overly prejudicial and otherwise admissible into evidence yes those are all things that can go to her credibility but just her opinion that i believe that the defendant's guilty there's not a sin it is a sufficient nexus there with her motive to testify falsely that this testimony which is extremely prejudicial to the defendant should be admitted  you know one thing i do want to address that the state argued which is that that her this testimony regarding her belief or her current belief was unsolicited the prosecution asked the questions do you believe that he killed your mother i mean it was not a solicited the product this was the prosecutor's line of examination so clearly it's the prosecutor who injected this issue into the into the trial  and again i you know with which we go to this being a prior testimony and a prior proceeding i agree that if it's otherwise admissible then it can be admitted substantively but that doesn't answer the threshold question which is whether this testimony the subject matter of this testimony her belief should be admitted in the first place because if it not if not then the fact that there's prior testimony as to that issue doesn't make a difference and  the state had attempted to make some distinction between this case and kroenke based on the language that was used in crump exact question that was asked in chronic was through the course of your investigation officer did you have reason to believe that the defendant in this case committed this offense yes i did so it's the exact same word what is your belief and the road repeatedly was asked to testify as to her beliefs both present well given given abuse of discretion standard and this is the state referred to were liars testimonies it was she concluded before the jury did he kill her if she says no i don't believe he did where's the righteous approaches comes in because prior to that she would testify then two thousand and seven she did believe that the defendant but as the day of his trial her belief was no he did not do it the jury was informed that they could consider they did they must right if i understand your house question correctly it whether it's recalling a past belief i think is irrelevant to prejudice the fact that at one time she believed that the defendant did it i think is sufficient to prejudice the defendant  me both simultaneously provide within ten days the court is taking the