good morning your honors and they have please the court lawrence do pretty with a seventeen year old minor when he was arrested and charged with first degree murder and attempted murder he was represented at trial by an attorney who misunderstood a basic rule of evidence and then received a sentence as severe as any adult in illinois the equivalent of life in prison this court should reverse florence's convictions and remain for a new trial because his attorneys incompetence turned  otherwise inadmissible prior consistent statement into the centerpiece of the state's case alternatively this court should find lawrence's seventy six year sentence unconstitutional because it violates both the letter in the spirit of miller vs alabama turning to the trial issue first it is well settled that the state cannot introduce a prior consistent statement of a testifying witness unless necessary  recent fabrication even when such statements are admissible they cannot be argued for their truth defense counsel did not know this his ignorance of the law it led him to commit three major errors first he opened the door to the prior consistent statement of who the state admits is the most damaging witness in the case donald heywood seconds he allowed to stay to introduce the statement repeatedly through multiple witnesses emphasize it and argue it for its truth and third he never even requested a limiting instruction the error first arose during the examination of donald heywood at trial haywood testified that he was driving the car used in the murder and testified that lawrence was the shooter i'm cross examination defense counsel introduced in an inconsistent statement from october thirty first two thousand and six this was the first statement donald haywood ga in that statement he denied being part of the crime and denied knowing lawrence if counsel had stopped there the jury would have been left to decide between two very different statements given in very different times and to pages eight and nine of our brief but he did this by suggesting falsely and what he knew was falsely that heywood had recently fabricated this testimony in conjunction with a meeting with the state's attorneys in preparation for his case him in the last week or so his memory about this incident he asked specific questions about whether he would have looked at pictures and then decided that lawrence was the shooter so it's a series of questions part of which was that he was meeting with the  soon as those questions were asked that's when the state's attorney argued that defense counsel had suggested that he was quote in cahoots with the state donald haywood was and that's what opened the door so it was those series of questions that council had frankly no business asking because he knew this was not a recently fabricated identification of lawrence once that once he opened that door the stage stayed barged right through it they redirected donald haywood explicit did the entire virtually the entire november first statement they repeatedly asked him if that was the troops were you telling the truth on november first when you told the truth in november first you said lawrence was the shooter then they are listed in the statement again through the testimony of detective l caught which was also improper and the state doesn't even make an argument that that was permissible if his spectacle he conceded that point then they argue in closing arguments you should believe that you've done ok with trial testimony because it mirrors what he said in november first he's been saying the same thing for four years that's blatantly improper your honour's we cited myriad cases in the opening brief and in the reply brief finding reversible error and the admission of a prior consistent statement and particularly at first of all the state the state didn't bother responding to any of those cases particularly people versus montgomery and people versus miller are cases that say when the state is especially prejudicial and damaging when the state alyssa's this kind of statement through the testimony of a detective because it suggests to the jury it lends more credibility to it because the police are now repeating the same statements so lets particularly prejudicial in people versus smith this court said that admission statement used to bolster the sagging credibility of a witness is reversible error when the witnesses in court testimony is crucial and here the state has admitted the witness is donald heywood's in court testimony was the most crucial testimony in the case if this was a or it was prejudicial there were only two witnesses that yeah identified lawrence as the shooter one of them is clinton latimer who recounted a trial so he also is a man who this jury was forced to determine between multiple inconsistent statements and the only other one was heywood and he would was the most crucial witness in the state the state used his prior consistent statement over and over and over to do exactly what this court has condemned to bolster the sagging credibility of halen that was wildly improper and defense counsel had no idea how to stop it turning to the sentencing issue lawrence faced a mandatory minimum of seventy six years in prison and he received that mandatory minimum and million versus alabama which was decided one year after lawrence was sentenced the united states supreme court held that mandatory life sentences for children are per se unconstitutional there is no functional difference between a life sentence and a seventy six year sentence of which lawrence will be required to serve at least seventy one point three years before he is even eligible for rel to hold otherwise would create an absurd results were children who have killed at least two people automatically receive a new sentencing hearing because they automatically received natural life but a child who is killed only one person does not receive a new sentencing hearing because he killed only one person and received a term of years that amounted to natural life the state has not disputed any of these points the state does not dispute that this is a defacto life sentence and they cannot th lawrence is not even eligible for release until he's eighty nine years old the average life sentence for a person in the united states is seventy six years and it's substantially lower for an african american an african american male in prison so there really can be no it it would be violating the holding of miller and this u s supreme court's interpretation of the eighth amendment to affirm a sentence that amounts unquestionably to natural life in prison with no possibility of parole before dying our briefs is the remedy that the illinois supreme court approved in people versus leon miller which was factually distinguishable of course but what the supreme court did in leon miller is allow a trial court to impose a sentence that was vastly lower than the mandatory minimum and leon miller said it was going courts historically have had quote the discretion to grants leniency to a juvenile even if he is prosecuted as an adult and that's what we would suggest we would suggest remains for a new sentencing hearing at which the trial court is required to consider the factors the u s supreme court laid out in miller and is authorized to impose a sentence below the mandatory minimum i would also note your honor that several of the statutes that require such an extreme sentence are being litigated litigated right now in illinois supreme court and people versus pacheco and people versus jenkins in those statutes are challenges to the constitutionality of the mandatory firearm enhanced means to the constitutionality of mandatory consecutive sentencing and to the constitutionality of mandatory truth in sentencing requirements so it's possible if this court remains that by the time it gets back for a sentencing hearing some of those issues at least will have been decided and certainly it at a minimum or it should be able to present those issues in the trial court and to challenge the mandatory application of all those requirements which lead to the mandatory seventy six year the miller factors are things like the korean the court is required to consider things like age the circumstances of the offense the family upbringing the circumstances of the child rearing his potential for rehabilitation and all these factors are very relevant in this case lawrence was a seventeen year old young young man who was both of his parents were drug addicts both of them had extensive criminal histories themselves he was removed from the home at a young age because of abuse in his home he was raised separately from his siblings and despite all of that frankly tragedy at age seventeen he had no juvenile history and no criminal history this was his first offense even even after he was unfortunately incarcerated he managed to graduate as the valedictorian of the jail graduating class this is a young man who does have a potential for rehabilitation even if this court of from says convictions and those are the exactly the things that miller said are very relevant to the determination of whether a child should be afforded the prospect for release before death no illinois court in a published opinion has yet addressed whether defacto life sentence a term of years that amounts to life is falls under miller this would be the first court if the court chooses to address it the first court to do so however a number of other state supreme courts and have found follow the reasoning of miller and said that it unquestionably applies to a defacto life sentence the california supreme court and people vs caballero said that the kill the massachusetts supreme court in commonwealth wells versus brown the iowa supreme court in both state versus no in state versus ragland addressed this issue and notably the iowa supreme court should be considered particularly persuasive on this issue because the illinois supreme court just a few months ago on people versus davis quoted or addressed those cases at length particularly state versus rabble and say versus no and found those cases persuasive as to the reasoning of why miller plays retroactively so this court should do the same and in those cases in wrangling to know was supreme court address one was a miner who received a sixty year sentence sixteen years below what lawrence got and one was a minor who received a fifty two year sentence which obviously is even more significantly below that lawrence got and the court said that miller applies to sentences that are of the functional equivalent of life without parole that's a direct quote from state versus ragland which lawrence cited in his reply brief the court in no said that the prospect of geriatric rel not the meaningful potential for rehabilitation that miller had in mind and here we don't even have a prospect of geriatric release we have no prospect of release at all the state has chosen not to address this issue has not cited any cases to the contrary has not made any trial court to consider to hold a miller hearing in which the trial court is required to consider factors such as age family background upbringing lack of criminal history potential for rehabilitation all the factors laid out in miller and the court has the discretion to impose a sentence below the mandatory minimum the reality your honor is that lawrence received not only constitutionally inadequate representation at trial but a constitutionally infirm sentence after on how to conduct this trial and in most importantly how to conduct this cross examination it is a touchstone of strickland and its progeny that the decision that the trial counsel makes as to the strategic manner in which go he conducts his trial in particular how he conducts his cross examination is virtually unreviewable he is the person in the court he is his client who's been pointed out as as being the killer and it is his job to confront the witnesses against him and to try to raise reasonable doubt in his cross examination so how does introduction number first further that strategy heat he has to decide whether or not he is going to conduct an aggressive cross examination or true conduct a cross examination that leaves some questions on asked some arrows on fired he decided to go for broke he decided to ask every question he could think of it would cause the defense the witness to to be doubted by the jury and he one of the things he did was to demonstrate or tend to demonstrate to the judge or to the jury that he was able to answer questions about the consistency of his testimony with the other evidence of the trial because he had met with the state's attorneys he had looked with the looked at the photographs he had he implied that the state had told him that some of his answers there is you know it is proposed testimony was not accurate and by doing so call into question whether or not the defendant was telling the truth in trial but there are cases that say simply because you asked a witness  cases that go the other way also but in this particular instance he had actually a ask questions that implied that he was deliberately lining with the cooperation of the state and the the if he had relied upon merely diac tobar thirty first statement he would have nonetheless put his client in the car and he would have been confronted with the doubt i think is not demonstrated particularly when you have the testimony of clinton latimer who testifies to the same thing that defendant was in fact the shooter so you don't decision and one fifteen ten point one evidence is every bit as valid opinion it's not a second class type of evidence evidence every bit as valid and it can support reasonable doubt but the one fifteen point can only applies to la it brings me back to my first point all right we're going we're doing what we're not supposed to do and then to second guess trial counsel he's the guy in the courtroom he's the guy who has to ask the questions and make his his decisions on the fly we have the luxury of thinking about things and looking up the case law and thinking about it in luxury in our offices council can't do that he's trying to case right then and there and he doesn't always know what's going to come off and he thought at that point that it was the best or proper use of of of his cross examination to confront the witness with with the fact that he had met with the state's attorneys that he had looked at the photographs only wise how does he explain the fact fed this witness is all of a sudden consistent with all of the other evidence now in order trial to result rigorous where the decision has to be more than just wrong ok it has to be more than just with unfortunate results it has to be catastrophic leigh wrong and the cases that defendants cites in her brief point this out it points to matters where the defendant himself introduced elements that the state had not introduced where the defendant himself head make connections between the defendant and the crime or  the contraband stolen material where the defendant himself had essentially changed sides ok you don't have that here you cannot say that because he headed asked these questions on cross examination which is after all his prerogative the manner in which he tries this case is this parag until you cannot say that that is why this made this this defendant was convicted it's just not said that that and there the evidence that came in was cumulative you head to the testimony of one latimer which the jury clearly accepted and defended maybe not  perfect trial maybe not perfectly representation surely but it was a fair trial and it was it was reasonable representation his representation that i think ensured confront of the witnesses and ensured that the evidence was tested in the in court and the jury believed them and the jury knew that they had changed their tristrem stories so the jury was in a position to determine the credibility well the jury was told what ten twelve times that he would sense when he was true true i'll be honest with you i do not have an answer question i think it's just a matter of assessing you know the the the total package of evidence and the evidence that convicted the defendant the evidence that came in via the prior statement was cumulative o the courtroom testimony of two witness the one fifteen ten to s to ten point one estimate testimony and b in court testimony of mr haywood and like i said i think you defendant got a fair trial position that this court you have confidence in the conviction yes the jury made the jury heard it all and the jury made its decision i should also point out that defense counsel was of the opinion that both the yes it opened the door and it was undoubtedly a calculated decision on his part whether was correct i don't know but i can you know the idea that if he had left it out we would have a and acquitted defendant i just don't think it's horrible because the evidence that defense counsel did impeach him with was just too weak and it was that big you got colder thirty first statement was just that it was it was just not enough it put if the defendant at the scene and that alone would would support the you know you know the october thirty first statement doesn't sudden he changes the statement a day later you know it's everything so you've got i don't know anything in court oh yeah i know exactly what happened in those two or exact  to the crucial point of who is the shooter he never named a shooter in the october thirty first statement and so he has defendant and he's a thank you and good morning first i would just like to apologize as counsel pointed out our brief was not directly responsive to the issue of the second issue on the sentencing matter as a supervisor of the criminal appeals of vision it is my responsibility and i take full responsibility in this case and i apologize for that however counsel is now correct when she says that our brief is fully non responsive to the issue because that is not true as you can see from our brief we do specifically address the cases which counsel first to the  and we specifically point out in our brief that miller does not eliminate all mandatory minimum feel fine and i believe on page forty three of our brief in that exactly the point that that is at issue here this defendant was found guilty of the murder of an intentional first reemerged or by his own action not by accountability as well as an attempt first degree murder by his own action and not a kind of believe he did both of those offenses by firing a firearm approximately injuring the bit causing proximate harm to the injury of the victims by definition the range in this case and they supposed to be mandatory minimum for the fences the means for a minimum for the firearm and he has spent in the consecutive sentencing started at seventy six years the minimum it was about to say your honor is that no courts in the state of illinois has held that there is a de facto life violation under the eighth amendment in fact that counsel relies heavily on the knoll decision from the on from the iowa supreme court to their decision if you read it carefully the aspect of the de facto life was based upon the iowa constitution something which is not similar to our constitution the onus for court has not made a similar statement in any way were guarding de facto life the people  brief was a rejection against mandatory natural life eliminating all discretion from the judge not saying there cannot be a lengthy term of years same with the people versus davis case which counsel were referenced earlier their court specifically upheld the availability of life sentences for juvenile murderers in or lesser lengthy sentences all what the only sport held in davis was at all nor held was a prohibition against the unique sentence of mandatory natural life that's not what we have here and that's why your honor from a defacto natural life standpoint it's not an eighth amendment question i'm not going to say here and say that a seventy six year sentence is not a lifetime sentence for this individual but it doesn't mean that intentionally balance fairly has its own mandatory minimum that must meet it here to the trial court had no ability to avoid that there is no way to say well i wish i didn't have to give you the mandatory minimum but i'm going to give you less that would be a void sentence and so yes this is a lengthy sentence but that's a lengthy sentence because it's the crying that the funding from it in for that reason it has to be affirmed it doesn't violate the eighth amendment  a bama which talks about solely the mandatory natural life sentences doesn't violate roe program either and it doesn't violate people versus miller or people versus davis and for that reason we did ask the score to affirm prior consistent statement issue seems to be that it was a strategic one and that this is within counsel's purview i think to point out why it's not even plausible to read that in from the record the first reason is that one counts when the state attempted to introduce the statement after the redirect of examination of donald heywood the state then attempted to introduce it substantively by using the video statement and counsel actually objected and he said he didn't want this statement in evidence and he only the only reason he didn't object during the redirect of donald haywood is that he thought the state could counter his own impeachment and as i believe justice mason and pointed out during questioning that's blatantly wrong and the state's position on that is wrong as well there is abundant case law indicating that the mere fact that someone used it in a statement to impeach that does not open the door that is not alone create an inference of recent fabrication so council was wrong when he thought the state could use the november first statement simply to counter the october thirty first statement counsel was also wrong when in detective l katz testimony he objected to the objection to be on the scope that's another indication that he didn't understand the prior consistent statement rule this wasn't strategic he didn't want it in but he didn't know how to object properly and the third indication is actually during the jury instruction conference counsel of course i never thought to propose limiting and struction prior consistent statement but he also objected to pattern instruction three point one one which is about inconsistent statements because according to defense counsel he thought all of the statements were in substantively so it's clear he did not understand how the law works he did not understand that this was not a substantively admissible statement it couldn't possibly be strategic when he simply grossly misunderstood the rules of evidence also the state argues as to prejudice the state argued that it was it has to be a catastrophic only wrong error i think we're all aware that's not actually the standard but what the state failed to do is provide any rebuttal to the cases cited in lawrence's brief in people versus young the state suggested that there are actually no cases finding  ineffective assistance based on admission of a prior consistent statement that's wrong in people versus young this court held and it cited in our brief counsel is ineffective for opening the door to a prior consistent statement that's exactly what we have it issue here and there is precedent for reversing on that ground and in people versus simpson this division actually just two years ago found counsel ineffective for failing to object to an enemy a simple statement it wasn't a consistent statement so it's a little bit different but again counsel was ineffective because he failed to object to an end admissible statement and open the door for the jury to consider far more than it possibly could sound that was a massive error in this case it was a focal point of the state's case and it demands a reversal for a new trial impression and so i think it's it would be a little bit absurd to find it simply because no court has addressed this issue this court shouldn't hold that it violates miller the state has offered no reasoning whatsoever it has just said it it i really excuse me reduce the sentence based on the iowa constitution but in raglan this court had the iowa supreme court based it purely on miller and said miller applies to sentences that are the functional equivalent of life without the illinois supreme court has found radical and persuasive raglan was based on the eighth amendment and based on miller principles in explicitly so held and if this court chooses to address the sentencing issue it should hold that way as well spellberg like to compliment you on your arguments this case will be taken under advisement and this court stands in recess