multiple improper opinion testimony statements multiple errors in closing argument rebuttal why don't you talk to us about how this evidence was so closely balance  witness that doesn't necessarily make the evidence closely balanced there are several factors so i'd like the opportunity i wanted to recite the many reasons why the evidence is closely balanced the fact that there were no other  witnesses is one factor a nd factor is there was no physical evidence against the defendant a rd factor is there is no written incriminating confession taken by the evidence i believe doesn't make it overwhelming because there are a lot of weaknesses in their testimony that the testimony only lasted a couple of lines in a hundreds of page records so it's all   the girlfriend was conveying her opinion that the defendant had made a statement like that so we don't know that either and then of course that's what this relations and he apologized while i would defer to the record but what i recall and i have it my notes today is that he was he said to the girlfriend he was with her and  i think the state's attorney was trying to ask questions directed towards eliciting statements that the defendant apologized but i don't think the girlfriend actually specifically stated that the defendant apologized or and and then again what did he apologize for diddy apologize i don't think there's anything in a record to girlfriends to pacifically stating that the defendant apologized for having sex with the with the girl so i think not leave and go to mexico is that not evidence that is evidence but again i would argue this i didn't reply brief he didn't he came back in addition there was evidence brought out that he went there to visit his sick mother and in mexico not because he was trying to escape prosecution so again it is evidence of the stake a point too but the question is is whether or not that evidence is overwhelming and i don't think it's overwhelming and i i do point to a case i want a lot of cases that were closely aligned but there is what he said i did fight and that nation's to another witness so even if there are some statements that could be construed as an incriminating there's a lot of add to that sort of lack of evidence pointing to the fact that this evidence is not overwhelm me because it is not at all clear that this evidence was overwhelming or clear certainly true i there are a lot of reasons why  argument and i believe your today in your grief seem very similar to the arguments defense raised by trial counsel and that is that there  corroboration only two witnesses testified the police didn't testify the investigator for the sexual abuse agency didn't testify denise and the daughter didn't testify and the defendant didn't testify and so in order to establish plain error when supposedly a lawyer who is supposed to be competent is supposed to be objecting to things like hearsay and whatever you normally are supposed d to raise ineffectiveness of counsel as plain error and you haven't done so to my knowledge you are arguing the same theory that defense counsel races but you don't address whether or not that was strategy or effective or ineffective so would you comment on how and there is forfeiture based upon the failure to object to preserve the error to allow what you claim to be inadmissible evidence that is prejudicial why is it that you haven't addressed whether or not it was true trial strategy in part because if the counsel had objected then the testimony may not have gone in or it would have at least been clarified to be non strategic is often played out in a post conviction with the testimony of the attorney perhaps but strategic not to raise it here anyway right i think and i loved him as a account so i thought the most promising issue was to raise it as player in fact how did you know you you as justice mclaren pointed out the same issues that you're arguing here today were argued before the trial court we have a jury verdict how do we reverse that jury  on arguments that were already addressed by the trial court during had the opportunity again to judge the witnesses look at the create the credibility of the witnesses take into consideration the of all of these these errors that you submit were set out i mean look at that that individually maybe but in the totality how do you submit that we as the appellate court reversed the trial o shifted the burden of proof in closing argument by saying that if that the defendant in order to prevail here for a not guilty verdict would have to prove that the defense of the state witnesses much but again you have to prove either that the evidence was closely balanced or the error was so great that it deprived the defendant of a fair trial in the closing argument what what are you case where there is a combination of improper emission of prior consistent statements plus closing argument your rebuttal i'm pretty familiar with the case i was the one who argued it and what the court held in that case if they had health nd prong playing here or because of the combination of prior consistent statements that should not have been admitted and and he and he improper closing argument shifting the burden of proof is really quite closely aligned with this case so i cited many many cases in this brief of mine so i cited meant cases in fact if court will look at the reply brief near the beginning i cited about five or six cases they were closely aligned with the present case where the court found player and it was similar to this case because it involves the admission of prior consistent statements and closing argument error all combined intertwined to improperly improperly improperly bolster the credibility of the complaining witness so both during the credibility of the co the complaining witness that the questions that were asked were you're submitting they were fals during the hearsay statements it's just a meeting those who are really going to prove the sequence of events as that they had a conversation with denise in the livia and then she did she went to the police and that probably would've been ok but what the state actually did is they listed the substance of the conversation meaning the defendant ra me so what the state alissa did to bolster the credibility of the witness is that the state elicited that j c told denise and livia rubin rate me and then denise to live in may it was listed that they made improper opinion testimony response saying that's not ok that's close to a quote and then even in closing they did that with t police they did that with the with the child advocacy center and then a closing argument they actually used this as a for the truth of the matter asserted listing now no no but as it steps prior consistent statement that increased the presidential fact of the improper hearsay the improper opinion testimony so no i i disagree with the state wasn't offered for not hearsay purpose because you know j c testified that the that she told the cousins i mean he neighbors have room and had rape me so they offered for the truth of the matter asserted the counsel how do we get around all this there's no objections it comes in how do we not conclude this was trial strategy well i have i have cited several cases and i believe i've been very sterile and in fact very close to the beginning of the reply brief maybe the st or  rd page so i don't believe i have to rely on ineffective assistance oh i understand your position is it's the combination of this multiple opinion testimony coming in through the years prior consistent statements being inadmissible hearsay plus improper opinion testimony because the j the olivia the police and  opinion on a defendant's guilt or innocence so here say prior consistent statements of improper opinion testimony then a closing argument which was quite pervasive in the ro stablish the validity of or her claims and that they couldn't get into evidence why she left and basically that denise and her daughter didn't testify even though they were supposedly the ones that drove or denise was the one who drove her to the police station so how how does a defense counsel get that it evidence into the case so he can tell the jury that where all these witnesses that supposedly this person had some interaction with and who supposedly could corroborate this but the evidence is so thin because there are only two witnesses and guadalupe b is questionable even though she's crying in a closet and says to the victim i don't want to see you anymore so how does a defense counsel get that evidence of before the beyond a reasonable doubt and i think he did what your honour's pointing to as he pointed to several deficiencies in the evidence lack of witness cooperate corroborate that's precisely what i'm arguing here on on appeal is at the evidence is closely balanced the lack of evidence in this case i'm not arguing that the evidence is insufficient under the jackson version as for it please the court counsel your honor the defense tries to make many convoluted arguments with multiple sub parts in both their opening brief and in their reply the people's response is simply that there was no error if there was any error it was clearly invited we have actually a recent example which is not you know binding on this court but in the derek chauvin case you know the court affirmed in objection after you know continually the prosecutor kept saying you know story story story we're citing television you know we're not i'm just you know citing that as as a recent example but you know i cited again probably more exhaustedly than i ever have gone through the exact comments by defense counsel needs that comments by the people that that time after time after time the defense attorney  sad and i basically you know specifically can quote that the story was unbelievable unreliable impossible defense counsel we agree did not use the term lying did not officially call the victim a liar or guadalupe but this was arguably and i stick to  the concept is based upon the belief that a defendant should not have to prove himself innocent and so even if the statements were stories or impossible or fantasies it would be improper i think for the prosecutor to say that the defendant has to prove that the story is impossible or the defendant would have to prove that the story was fantasy or whatever there is nothing that the defendant has to do unless he's raising an affirmative defense to do anything and so any time a prosecutor makes a statement that the defendant asked to do something is error and so let's proceed on the basis that this was error and it was heat and error now the question and that as just the all the things that supposedly were being raised bait in an iranian categorization of it and that we should affirm therefore i'm done  your honor as as the court is obviously aware we did argue that even if this court were to find that those statements were erroneous the statements were definitely harmless beyond reasonable doubt they were harmless beyond reasonable doubt because contrary to defendant's position the evidence in this case was overwhelming we also did analyze case law this court would find that the error was pate that the types of common still are much less agree just or paid than in other cases that we're finding plain error number one and number two in each of those cases the error was found to be closely balance it's not clear who can distinguish wilson and ferguson which the defense relies upon earlier decision and this court said that the distinction in those cases yes of course the general rule is that plain error can lead to reversible error but it does not when the evidence is not closely balance and garcia is much closer to this case than karbala yonkers wilson etc and we did distinguish that you know in our brief and say the reason here is we had the uncontroverted evidence of the victim who consistently stated that defendant was the individual that  counsel you just said that the victim consistently testify isn't that the whole point of all these prior consistent statements and she told denise the same thing she told the police she told the child advocacy center and all of that comes in why is that not alone reversible error let alone the combination of bad and ok let me let me digress for one second then i'll  address your question when i say she consistently testified i'm not saying she consistently testified to multiple statements i'm saying she consistently testified in that she stead the what what defense counsel later term her stories i'm saying she said in her testimony correct there was not multiple statements and i'm sorry but defense counsel is completely incorrect to suggest that there were multiple consistent statements there was one brief statement where the victim explained that when she was a thirteen year old girl kicked out of her aunt's apartment by her ad and confronted with that she had done something wrong by having sex with the defendant that she ran crying out of that apartment was found by  neighbor and the neighbor's daughter and she made one brief statement that i didn't want to tell her i was embarrass well what did you venture lee say i said i was raped they said that was wrong and you should go to the police that was not for the truth of the matter it was merely to explain the sequence of battens if it didn't matter why introduce it is it is pretty prejudicial not you think i didn't say it didn't matter i said it was introduced for the sequence of events it was not introduced for the truth of the matter asserted secondly we also noted that to the extent that that again if it was error was problematic it was harmless piano reasonable doubt because the defense kind of has it backwards if we had brought in the police officers to testify to what she sat if we had floor in the child advocacy center to testify to what we sat if we had brought in the neighbor and again she couldn't bring in the neighbor's daughter because there was testimony that she was deceased but if they brought in the neighbor to testify as to what that would be improper bolstering an improper opinion all we've brother did was i'm sorry man in this case i guess they could of but i believe that there would have been objections by the defendant that that was improperly bolstering with prior consistent statements but yes they were potentially available for that purpose was there any objections to the statement that th ey submit is hearsay of course not and that and that was our point was not only were there no objections but that that under the rules as case law that we stated including you know  that that will cause the statement was made by the victim herself it was one merely cumulative therefore it wasn't as harmful and two she was available for cross examination and she was cross examined we also noted in our opening brief that it was the defense who had brought out the concept in their opening that the victim went to the police and went to the child have  sat or so and the error if it was was lessened by the fact that it was st raised by the defense counsel now back to the question and i asked you the combination of those things brief the fact is that the errors if so would be harmless because the evidence was overwhelming and even in cases and again the people cited case law even in cases where the errors were preserved this court has found that and the courts of found that if the error is harmless because the evidence was overwhelming or very strong that bad in itself would not lead to revers error that it is even much more difficult and is the defendant's burden to demonstrate in a case where the error isn't preserved that this rises to a level of plain error which the defendant has ok the people just want to mention a couple of concepts raised for the st time in the reply briefs that obviously we don't have an opportunity to respond to in our opening br which will rely on for the most part the main one is the concept of foundation or lack of reliability of guadalupe statement defense raises for the st time in reply that there was either no foundation or was brief or a fleeting the fact is that the prosecutor commented and it's hard on of course on the whole record but the prosecutor commented that  e appeared quite friendly to the defense attorney and was clearly reluctant to testify against need defendant you know her the father of her children but the fact is she did clearly state what defendants testimony was we would note for the record that there was a translator so we're not sure exactly if what what her comment was but when asked to explain what she meant by i was with the victim she explained specifically that that meant that he had sexual relations with her she also explained that he blamed both the victim for pulling her shorts down that doesn't make a lot of sense that he was with her i e you went to a restaurant with or if she was pulling her shorts down and to that he also blamed white a loop a for not monitoring more closely but then again his apology and also for the record to the extent that defense counsel argues that the record clearly established that defendant didn't that he was going to visit his sick mother that is not what the evidence at trial suggested the evidence at trial was that defendant left suddenly that the mother of his child that was you know two or three months old was not advised why he left she didn't have a way to contact him he didn't tell her why he left he didn't provide any support for her  on his return she merely speculated that it might have been because of the sick mother but she did not testify to that and when the people objected to defense counsel's comment that he left because of this mother consistent statements were used to prove the truth of the matter asserted and one he's a supporter i'd like to offer ah there which is in my brief is a closing argument because in a closing argument the state's prison said that the police the child advocacy center were convinced that she as she was telling the truth has an improper comment because what the police and ch or implied that they believe the victim or they would not proceed with the prosecution well the state the prosecutor explicitly stated that in the closing arguments perhaps the jury the the neighbors that jaycee told the police that jaycee told the advocacy center their room been raped me the state could have done things differently they didn't have to alyson testimony that reuben said i believe i passed up just for a lot of reasons i defer to my brief but i'll list them now one reason is this rule about burden shifting is decades old the state should know better than making a statement like that in the  that's flagrant another no reason mits the bet was invited because in the closing defense brah brought him to their closing statements that invite him that well wait a minute you're going to say that the state as a matter of was not entitled to burden shift i cited cases to support that in my brief the nd point is there was no improper argument the state did not object to the defense counsel's argument and the defense counsel jack the matchday merely not defense counsel did not make any improper arguments he simply pointed out that there's a lack of corroborating evidence and that there  indicated his client should be acquitted because the state has the burden of proving guilt beyond a reasonable doubt so under the invited their argument no invited error or an alternative even if there was invited there the state cannot raise that is a matter of law because burden shifting is a special species which is beyond allowing the state to go ahead and respond short of a council  that was done over and over again because it wasn't just the neighbors it was done with the police and the child advocacy center the improper opinion testimony which was you know where  testimony so there's a lot of errors here multiple on several different fronts and i cited about five or six cases which are closely aligned here in my brief particularly my reply brief write a list of them at the referee and so i'm curious as to if this was a flagrant foul and this lawyer was competent why didn't you raise ineffectiveness of counsel in so far as his failure to object to all the things that you claim were errors that were apparently affirmative acts done by the state which a competent lawyer would have objected to well the reason this is because in my research same people hearses version same as people versus rivera same of people versus miller so i relied on well established case law not just one case but perhaps five or six cases cited in my  and i wrote a fifty page brief two and the opening brief there's a lot to cover i wanted to be several in addressed all the arguments that the state might make that and i click over fifty pages so as a better my strategy i relied on play in error cases where the defendant prevailed with no effective assistance counsel raised rather than dilute those arguments and i didn't by raising effect of this is are there any other questions than the man on no thank you now thank you for your time as observer we will take the case under advisement and i would ask the clerk now