three two and then if there is time perhaps a few points and one to very briefly set to say the fact with some facts to set the stage the murder of twenty white occurred on memorial day two thousand and six  or perry was taken into custody for your hearing back all right around suppose he was taken into custody forty four days later the next day he gave an electronically recorded interview to police a crucial portion of which was unfortunately inaudible however the text of danny stover who conducted the interview prepared a written summary reports in which he recorded the perry stated that he was at home with his mother that memorial day and the trial perry's alibi defense was indeed that he was at home with his mother on memorial day he was helping her move perry testified to that effect at trial so did his mother barbara rodman sort of his brother and so did his and spy friend who was there in cross examination these witnesses the prosecutor implied that the alibi was fabricated during his mother's jailhouse visits with with perry and that she and these other witnesses the brother and u according to their story about what perry was doing that memorial day in conversations among themselves and in their own jailhouse visits with perry there for to rebut that that inference a fabrication perry should have been allowed at trial to quit detective story work to testify about perry statement which was recorded story for summary report the statement that he or she was with his mother in order to rebut the implication made by the the implication of recent fabrication number one number two plane air the implication of the fact of i would say first of all that the courts have been clear that the prosecutor doesn't have to aggressively confront the defense with the with a claim a fabrication it's enough to imply the implication is enough and the implication that we are alleging is that that that talked among themselves they got their stories straight their story was oh yeah this defendant was was home with with us at the time that memorial day what we want is for perry to be able to rebut that able to bring that up at trial so he is in your view it's just the cross examination of the family members about the fact that they met with  defendant at the jail following his incarceration and before his trial that is the implication of recent fabrication that you're alleging that is part of it and the other part is that they talked among themselves prosecutor asked these witnesses did you talk to talk that's the mother could you talk to did you talk to the defendant's brother about what happened that day did you talk to the on spirit friend who was also available what's happened what happened that they asked  an argument to that effect the in closing argument the prosecutor spoke about was said that all of these with all these defense witnesses were family members and they might and they might they might want to support their you know somebody they rubbed out with with so i would say that that was that supported the defendant's the defendant's claim that brought out even more the fact route first or there was one man a witness who said who looked at it and identified somebody else so that's enough to put a little but that of doubt and as for the other two eyewitnesses one was a neighbor  know probability maybe if it is a current you know it wouldn't show them it's your and i mean it cuts both ways so i would say that i just based on the video you could say yes or no but it is just too includ conclusive to justify criminal conviction certainly it's enough to demonstrate that the evidence was closely balanced for the purposes of invoking the player rules of this argument to my next argument if we were  should have been able to do defend himself against a prosecutor claim that he's recently fabricated his alibi and in order to find air find it the case was the evidence was a police closely balanced and the defendant was prejudiced now i'm prejudiced we have an unusual window into the fact that the jury was finking about the alibi and the window is the fact that the jury sent back a note to the judge and what it was on the jury's mind and the one and only no to the judge it was that see we would like transcripts of the testimony of a defense witness of the defendant and his mother and his brother we would like transcripts know those transcripts were prepared so the judge had to say you know we just don't have those but it is before the motive or in case in this case the opportunity to have fabricated existed to the extent that he had been put in a lineup before had been questioned before by the police related to this killing after all as you pointed out yourself this statement didn't occur until forty four days after the seed was killed there would have certainly have been an opportunity to have discussed before the reason for letting it come in occurred now if for example he had been arrested the day of the killing and had no opportunity to have contact with his relatives beforehand wouldn't you agree that would be a stronger case than the situation where he had stood the line up before in this occurs forty four days after the shooting itself occurred yes your honor i do believe that that again invokes try and did you talk to the other talk among yourselves the defendant when he was arrested he was not taken into custody until forty four days after the events and at that time actually he was interviewed and he gave a kind of incoherent answer he said what was i doing i don't remember i'll have to check with my mother so we could just set up the alibi before then because he didn't have it he didn't think of it he when he was interviewed by stover he said destroying let's assume that at a trial this prior consistent statement comes in this very negative thing be what you consider to be the implication or reason fabrication the state would then be able to re both the chance to put it the prior consistent statement and the opportunity of the state to confront it with cross examination it would not i do agree with that your honor and i think the defendant want and what gives that attack the its power is the factor of recency the implication that a reasonable or an honest person would have come forward earlier would have come forward or were typical of his or her account writing you say so earlier if this is true why didn't you exculpatory motive so if the if the court goes with the fourth one line of authority you've got to show exculpatory motive it's going to cut off the ability of a defendant to tell to sue to challenge any alibi statement that was made decorum sake but to ensure that the verdict in bed criminal trial is a result of a reasonable reasons consideration of the evidence rather than passion and contempt stirred up by sarcastic jokes and putdowns so it's your in that so it would be fair to say that the defense believes the state and the defense should both be conducting themselves for fashion only and without ridicule without you more in a case that is so tragic and so important this is not a time we were joking around i totally agree with that iran or any other president working and maria has been the basis for reverse i cannot say that it's ever been the basis for a first or ever been said before this was so bizarre unfair to record the identification errors made by the three eyewitnesses more weight than defense counsel's mispronunciation of names i guess what's good for the goose is not good for the gander because mistakes can come from best side the defense side have a tough time  but if they're coming from the witness stand during the state's case during our burden oh you must then then the transcript cuts off because defense counsel objected and the objection was actually overruled but that what the state did here the prosecutor did not hear that was so wrong w prosecutors and by the by the prosecutor it is not the equivalent of mispronouncing names it's something more well they were she was comparing the fact that there were several misidentifications that were witnesses actually identified a totally different person at some point in the timeline of this case to the fact that the defense attorney just you know speaking during the it to different  or in the case called officer stove for officer stovall and used close names close sounding names but didn't quite get it right in that we've all done it so she was comparing missing who the person was and whether that witnesses it properly identified the perpetrator with whether or not the defense attorney misspoke herself not sure i think that was a shocking comparison i older than the actual time we do that's true and that is something to consider but another thing to consider is that these witnesses were never or were not forthright in  they said one of them said i signed the name of this of the defense of this other person though i wasn't one hundred percent sure and the other one said i signed the name of this other person even though i don't think it was him well the two occurrence dillon and josephine baker both had an opportunity in the first photo array to identify the defendant and did not both had no opportunity to identify the defendant in the first in the second photo are right and both identified somebody else both had an app or two to be to identify the defendant or anybody in the first lineup and could not identify anybody in the first sign up no it's true the defendant was not in that line up they're mistaken identity person was in that line up so it wasn't told by a second line up the fourth opportunity to see this defendant after having seen him twice before that they both actually said oh yeah it was him that  is completely unacceptable so the supreme court takes it seriously there are sort of interpretation of human nature is that this really does have an effect the flippant flippant remarks the jokes the jet the jibes they're not disregarded by the jury  a please the court right in this michel katz and the assistant state's attorney representing the people i'd like to begin by thanking the court for the prior extensions of time that were granted for purposes of preparing for this oral argument unfortunately a mess in the county w is the primary author of this brief still has family medical issues that she has to attend to so i'm here in lieu of her and with that turning to the first argument that the defendant has argued this morning there are two separate bases for this court to conclude that the defendant has failed to establish plain error in the court's denial of defendant's requests to recall the text of stover to testify to the contents and this was the request that was made the contents of his police report one of my arguments is premised on the particular facts of this case the other one deals with the legal issue of the two exceptions which would permit the admission of prior inconsistent a prior consistent statements when a prior inconsistent statement has been admitted at trial i want to start with start with the factual piece because it's the people's position that based on the facts of this case there can be no finding of clear error no less prejudice and that's because in contrast to what the defendant has argued in this briefing today it seems to have taken a slightly different spin and there was real question but that the defendant told the police when he was questioned after being taken into custody on the video tape he could out there that he was with his mother it's true that he didn't recall where he was because until there was a framework that was given to it which was this was memorial day that at that point he says he makes a whole number of statements that are all indicating that he was with his mother who's not sure if they were barbecuing or what they were doing he'd have to check with his mother but there's no question that he said at that initial interview he was with his mother only a debate and the subject of the prior inconsistent statement which the people cross examination by the state's attorney with the fact that he never said anything about it being moving today that's the basis for the impeachment of the defendant by omission with what was not said in that videotape statement that he said nothing about moving today so there is a dialogue that transpires where he is asked if you can say anything about it being moving day he says no well not at that point she persists well you said it in another point and you knew you were being videotaped i don't really know i was being videotaped you tell me i was videotaped ok i was videotaped yet it should be somewhere in there now it's obviously not in there what is in there admittedly it's a portion of the tape that was indicated to be inaudible cell after the defendant has been cross examined let's play a check and her partner go to the can say we want to know we want to be able to to we're in the interview this representation came to put it in the police report no question about it that the detective writes down that the defendant was with his mother now we don't know based on the record or lack thereof the person of the discussion if that's just my understanding of exactly what the defendant said if that's just some nation of exactly what was transpired  alternative of the missing portion is the portion which the defendant is arguing with said i was with my mama the bottom line is that was not the prior inconsistency the fact that he doesn't or that's right wait i thought that was the report that is missing no the report it's not missing not this not the typed summary but the detectives notes from which he wrote the summary was my understanding that from the transcript that the detectives notes that he took by his own hand while he was interviewing the defendant that those items i'm not sure exactly what  police report it's in the transcript it's my understanding of and i've read the transcript is that what's missing is a portion of the defendant's statement well there is an there are two things if when i read the transcript i thought that there were two things that were let's call them missing just for the sake of discussion the inaudible part of the videotape yes and the notes that detective stover took from which he wrote his police report which was the type document that is part of the police record i have to respectfully disagree with you that's not my reading but if that is the correct reading your honor and it was my understanding that mis wanted to cross examine him on his recollection of what was actually said when he was taking those handwritten notes in my understanding is that she wanted to use she was relying on the notation in the supplemental police report indicating that he was with his mother to use him to basically rehabilitate the defendant's prior inconsistent statement again but all having to do with whether or not he was with his mother which again is the people's position was not a contested fact in this trial the inconsistency had to do with it being moving today so mr omitted portion of all the representations by misplay check whether it has to do with not having his notes or having his notes or what was in the supplemental police report or whether there was more every representation in this case made by defense was that it would and again in the absence of an offer proof if a consistent statement does not disprove but explain that the making of the inconsistent statement it's not admissible it either just proved more explained it's moving to there is a complete and total position throughout made clear to the jury they didn't credibility of witnesses so and with respect to that and that's what the argument seems to have sort of transforms into today you can't take a claim let's say that the people's claim was that those witnesses testimony was recently fabricated you cannot counter the claim of recent fabrication of a witness with the defendant prior consistent statement has to be from the same person who's given the prior inconsistent statement you don't get to leap frog and use the defendant's statement to correct or have the jury not believe that the mother and the the defendant's assertion that there's a split in authority and the best case the closest case the only case involving a defendant is people versus her sat which the first district seventeen years ago now it's going to sing when you look at the body of case law like i've said every illinois supreme court case in every case other than grisette deals with the witnesses prior consistent statement there are two separate parallel lines of laws dealing with prior consistent statements one deals with witnesses prior consistent statements and one deals with defendants prior consistent statements because the general prohibition against allowing the use of prior consistent statements stems from two different things when it's a witness the philosophical bri by every illinois supreme court case that's looked at it to be inadmissible hearsay not because the jury believes what's most often repeated but because a defendant's statement when he tries to use it it's a self serving statement it's hearsay and that's because the defendant comes with a motive to testify falsely and you can't separate a defendant's motive out from the equation which is what they're trying to previously he couldn't answer this cross examination by the brothers that your position my position is that the cross examination drives the analysis of whether or not the prohibition or the bar against allowing those statements will be relaxed not because it's a charge of police or fabrication falls under that line of cases because there's a whole different inquiry that has to be applied and i would agree with you that us there are situations where it would be permissible for a cross examination they have to have been shown to a millionth the statement this is a confession this judge didn't appreciate that because he ruled initially the state can't put this in because it's not a confession and it's not an admission we know that that's wrong it's party admission we didn't have to confront him with him we could have created in without him so if we had proceeded in that manner which we would have been entitle to do not crossed examine the defendant not confronted him with it he wouldn't be able to put in it it's like when there's an investigation of a defendant starts off by saying i wasn't there and it is he says something that's a little more incriminating and then it grows he doesn't get to take the stand and testify to all of those statements that he made along the way and say those are prior consistent statements and the fact that he's got less there is some reason such as the implication this so for both of those reasons that the people would maintain that there is no clear error here and also i just do want to say at the end of the day people of us can ya do white instructs that when you're looking at a forfeited claim defendant has to make a showing of prejudice there is no way for the defendant to overcome that burden when you have everybody testifying that he was with his mother to the alibi is perfect to the extent that there's a problem with the alibi it's not because he didn't have an opportunity to say i said the said the police earlier it's because of the inconsistency in the testimony of those witnesses and so and i don't know if you'd like me to address the other issue if ogators pursued what were you doing that is where unfortunately but the telecoms cuts off at that crucial point why did he say it's pretty important to know the detector stover notes say he was with his mother and that supports them and that supports that rebuts recent fabrication this idea that the prosecutor was saying that all of that that the that the that the family members had subsequently visited him with with his i was with my mother moving i was with my mother i was with my mother moving i would say that the second is consistent just more detailed it's kind of it doesn't contradict it's congress it's just more detail to put   you cooked up that story when you when you when you were visited by your mother and when your mother talked to these other witnesses we wanted we want to present this as we want it's the it's the time factor that matters not the content we want to say this the statement was made before the allegation of recent fabrication and i mean and i don't really think that this is consistent i would say just just flippantly an image that popped into my mind of saying i had dinner later on saying i had dinner and eat a salad now those two statements are consistent just be a slightly more detailed and similarly saying i was with my mother helping her move a slightly relevant it's in effect it's consistent yes but giving him credit for being consistent by saying he's with his mother but i don't think that he got the credit because he  like a consistency but i really don't think so i think that that was i think that was it sounded like an invasive unclear answer and we wanted to show that later on in that interview when equipped in his money when he said equipped in his mind he said clearly according to detector stover's notes i was with my mother and he should have been allowed to do that to rebut the claim of recent fabrication we don't want to read but most of a criminal defendant maybe always has a kind of motive to alibi himself we want to rebut the