see what i thought we'd do is we would call both wilson and ray and proceed in the following order that we hear first from the appellant and we'll send second from the appellant in ray and don't necessarily each have to go over the same  that morning here on earth and i'll be arguing on behalf of appellant lorenzo wilson and in mr wilson's group you raise four issues and i'd like to focus on the first issue but i'm happy to answer questions regarding any of the other issues and i'd like to save a couple of minutes or so after a jury trial lorenzo wilson was convicted of first degree murder and armed robbery and about half of lawrence's jury trial consisted of the state eliciting the prior inconsistent statements of lorenzo's uncle charles wilson however the state should not have been permitted to use charles's handwritten or audio tape demon's because they did not satisfy the personal knowledge requirement in section one fifteen s ten point one and they were not admissible to impeach charles testifying charles only testified after the court to judge him a material witness and ordered him to testify when the state attempted to question him about his interactions with lorenzo in the days following the shooting  the personal knowledge requirement of that portion of the statute number one and number two if it was an error or whether it was harmless error under the circumstances exactly your honor so why don't we just  because the the fact that there was no injury to the state in the present taishan of it's in charles wilson's testimony so it's with respect to the renzo statements about what took place at the restaurant is that charles wasn't there and while charles was there to hear lorenzo's confession the rental statements regarding what happened what took place at the time of the shooting statements and it recognizes that we can't record something in our mind it's not that accurate and also basic leave my cards i recognize in a number of cases that this type of evidence this second hand account of a confession and what happened is one of the most unreliable takes of evidence we right there i mean if if if charles wilson didn't recant if he was there he said this is what lorenzo said to me you're saying that statements against learns own interests but in this case where charles wasn't willing to take a stand and acknowledge any of that the jury didn't have an opportunity to really understand what was going on at the time the charles h enzo but isn't that what that first exception of one fifteen is supposed to do were allowed wilson was there he was subject cross examination he gave this previous statement under oath to a number of  so i'm not sure i see this distinction where charles wilson is present and he can explain what it was that he he did say that he didn't remember this he was under the influence of drugs jury basically of all the requirements of section my fifteen x ten point one recognize that this type of evidence can be unreliable and that we need circumstantial guarantees it's trustworthy the only difference between an audio tape or head written and the grand jury is that the statute says there's no personal knowledge requirement if the declared race is right before hand takes an oath and then says it to the grand jurors now with the watching behind that distinction is it exists in the question then remains whether personal knowledge is satisfied by being a witness to the confession or whether personal knowledge requires that the subject matter of the confession is something that was witnessed by the person himself and we can't accept that we have all the information about the circumstances under which they speak for me and how trials may have been interpreted but do you do you agree that the grand jury testimony under the stitches is treated differently of time since we understand the issue you might want to address if we believe that it was an error what should be done maybe well in this case the state spent about half of it so confession and again this court and wilson in one thousand nine year recognized that this type of evidence raises the greatest danger of misapplication by the jury and the greatest risk of total fabrication by the witness then through again under issue one we're not challenging the admissibility of the grand jury testimony but it's well settled that a jury is more likely to believe something that's repeated and this case charles wilson made a fool of himself when he testified and it's highly likely that if the jury had only witnessed his display on the stand and then heard one account of the grand jury testimony that they might have totally disregarded his testimony but then what do we do with the other evidence when the other evidence directly implicating lorenzo was the testimony of paris goetia and the mate and this was self serving testimony from two people who received exceptional benefits from the state despite their own involvement in the bushes murder charges were dismissed he received a thirty year sentence for armed robbery and he only expected to serve fifteen years if any making was even charged and this is despite the fact that it took goetia almost a year and make at least six months to even them before their answer was arrested and they denied that even tonight knowing him they denied knowing each other they deny that they've been seeing each other they deny that they knew anything about the shooting and then finally begin to get a benefit from the testimony regarding the flight the possession of a weapon similar to the weapon used to commit the murder disposal of it in pieces along the highway well we've argued that even though we're not contesting  awkward situation having to testify against his relative and the statements that were made in front of the father that were all not i don't know if they were object to but all this information about having to leave and let's get him out of here let's get him out in the wasn't credible but in light of what the situation was it was certainly an awkward situation but that the details of all of that came out through these statements which was only led to give after he was arrested on his own unrelated gun charges and decided to volunteer that he had information about a homicide in chicago and asking about whether or not there was a reward so all of this information came from charles wilson whether it showed up at trial or whether it showed up when he talked to police in mississippi where the grand jury testimony all of that information came from the only and find information we have about what was happening with lorenzo and with his family came from charles wilson it some point and he been discredited various points for various reasons along the way and i just but i also like to point out that the state highlighted the use of highlighted his repeated statements in his closing pointing out that he had said this on three different occasions and that made it believable and so we do believe the fact that this is a confession from lorenzo which has great sway with the jury from a witness who got up on the stand and just wasn't  that again if the jury had only heard the grand jury testimony they might have disregarded it but they were given her testimony from two different prosecutors and police officers about all these prior statements and how they were told all along the way and how he having hopefully demonstrate that we're familiar with the facts of the case you can argue any way you like but i think it's just discord was alluding to one of the issues that's most interesting to us admitted against a defendant in this case lorenzo wilson's confession that he shot and killed the victim was not only admitted as substantive evidence against eric array in violation of every rule of evidence and constitutional procedure  allowing a co defendant to implicate him through and called the tory statement of a code he found the first issue i think you probably want to address is whether brew time survives crawford contrary to the state's position and contrary at least through to the circuit states supreme court case which is a little less articulate about how much a brew time of anything survives so why don't you pick it up from there and having to do that your honor in britain does survive crawford because britain was not only proof britain had to promise essentially britain was a confrontation clause violation and also a very explicitly a due process violation as well and the state makes no dependence confession to be admitted but it also cited primarily to jackson versus don which was not a confrontation clause issue it was a due process case again finding a due process violation and that was the primary case that britain relied on it's also relevant in britain britain is clearly broader than proffered because the confession at issue in britain was never actually admitted against the defendant in that case the can the jury in britain was explicitly instructed that the confession was was given a limiting instruction saying the confession could not be used as evidence against the defendant and so it was not a typical confrontation clause situation it anyway because it wasn't evidence against the defendant the curtain bruton found that even though the jury was given a limiting instruction saying this is not substantive evidence because that kind of error is so prejudicial because that kind of confession is so prejudicial it's not even  to not remedy the prejudice so that's actually something that arose in britain and was renounced by the us supreme court so the it's correct although there's a little bit of a difference here because group was concerned about the ability to manage and control the testimony of a lay witness here the management of that he has the prosecutor because all of this comes in by that in duncan one of the statements did not reference the code if the defendant at all just like here the statement in duncan it issued they did not explicitly reference the defendant at all it was a statement that the codefendant went to theory evidenced beginning with the opening statement by the defense lawyer that were ready to wilson committed the murder your honor it's not inconsistent with that but defense counsel vigorously attempted to preclude this evidence before trial and so this is a standard and we haven't really talked about that that the court allowed this evidence based on what based on the coconspirator exception which i'm happy to address your honor but  depends counsel did make a strategic decision it's true but he initially bigger sleep tempted to exclude this evidence and was only forced to make this decision after the court found that it was admissible and how do we review the court that conspiracy how are we reviewing that as the reviewing course we what standard review that you know your honor it was a decision of law by the trial court you don't you don't believe that that's an evidentiary ruling it was a decision of law to characterize that we would submit that the standard is to know about however even under an abuse of discretion standard the court did did abuse its discretion in finding this was a coconspirator statement well if we if we were to think that it was a it's allowed to be admitted against anon and the statement of a non testifying codefendant is allowed to be admitted against a defendant well that's really what the whole exception to the rule is about is that it allows honor i think i think that point quite frankly is open to debate because it has not been addressed in illinois so i'd like to briefly explain why this was not a statement in furtherance of conspiracy and then touch on the harmless error which is justice epstein's concern this was not in order to qualify as a coconspirator under the coconspirator exception it must both be made during the pendency of the conspiracy and in furtherance of the conspiracy and we would dispute both of those problems but particularly this is not a statement in furtherance of the conspiracy because in order to qualify as a statement in furtherance of conspiracy it must be made with intent to conceal the offense and that's what completely fails here lorenzo wilson made the statement to the flight all of them what's the disposal of the weapon all about if not and what about the statement that i  yes just discordance question he did alternately attempt to play yes we would certainly concede that however i think he wasn't attempting to flee or conceal the offense at all when he admitted to charles wilson and that's the statement at issue here when he admitted to charles wilson he did  conspiracy the test here is whether the primary goal of the conspiracy has been completed and in this case it clearly had the primary goal was to be done i would be complete if everybody was basically saying we don't know anything about this the primary goal here was they did not discuss ahead of time and there's no evidence in the record that they discussed or conspire together to conceal the offense what they did was conspire together to beat up the victim and that's when they left all together fleet all together one person was in the trunk and they all dispersed and then when confronted everybody knew nothing about it you're saying that there really wasn't any part of a conspiracy that's correct your honor and it's telling that lorenzo wilson when he decided to flee he did so in the dark of the night  for purposes of argument what is your position now the state suggesting you didn't raise this but i guess the motion for the new trial would last that there's clearly there was a motion raised to keep all of th honor this was not a harmless it was preserved and it's not a harmless error is just discord and pointed out there it was an enormous amount of evidence discussed in the cancer the testimony of charles wilson or the people that testified about what charles wilson had said the only people actually implicating eric are right apart from all of this what i position is all of that evidence was in her missing the minute the only people who properly testified against erica ray were peris and anthony macon both of whom received tremendous deals or in anthony macon's case immunity for their test both the test yeah that's my point i was going to ask about this if you took charles wilson out of she said and what she complained about and what she had michel we talked to them about and so the first of all yeah and we did for but the question is where does she get off the bandwagon and what does this statement or these statements by charles wilson really head to the dispute between her version and the goetia may conversions your honor our she wouldn't have to testify i mean that's were we have the record she did testify and she basically said you know i didn't think they were going to kill him i didn't think they were going to you know shoot him i don't think they were going to rob him i asked him to go there to well she actually denied it to ok she denied that they were going there to beat him up or rough him up the neck manner is this the record shows that they went there with a gun and there's some suggestion that she knew there was a gun so if you're going to beat somebody up what's the point of the gun so the jury kind of took that into account when they consider her testimony so i mean her testimony has it's it's here we have to do it it has to be she was angry that she got this charge that she made threatening statements or statements of anger and bad that were so logical if if if charles wilson's strategic decisions all the time and the fact is as mr donahoe pointed out this court can minimize charles wilson statements but it's that it was about two thirds of that the trial in erik arrays case so it's true that other people testified against her but even if this court looks at erik arrays and considers that testimony she's not able to say what happened in the store she wasn't part of it so the only two people other than charles wilson talking about what happened in the story also isn't that or may not have found her guilty if they hadn't heard all this testimony from the person mr wilson i can just close with this your honour's in harmless error analysis the state the state  well aware you don't only look to the sufficiency of the state's evidence you look at the nature of the error and in this case this is universally accepted as one of the most prejudicial types of errors so this court in in britain the supreme court h that it's a particularly prejudicial error because we can't know it's impossible to know whether a jury was able to disregard it here it's not impossible that we know the jury in fact did taken into account because they were instructed to do so erroneous lee and because the nature three of you morning janet mahoney m p f the people the state of illinois with regard to the admission of the audio statement in the handwritten statement yes to both wilson and ray this is being analyzed under forfeit point two specifically and it had nothing to do with an argument about one fifteen they asked him point one and it was never mentioned in conjunction with ten point one as regards to ray she never  there would exist under the bat if not under the due process constitutional issue of which conceivably could be comes from trial and the extent  argue that they have preserve these errors via the motion for a new trial with regard to this issue of such substantive use and impeachment of the audiotape in hand written i believe it is only wilson in the reply brief who says that that they preserve the issue erica gray when it comes to the coconspirator statement saying in her reply brief that she preserve the issue she did not but that's a separate issue from from what we're discussing but in the in the motion for new trial if it wasn't in there i believe that they were talking at one point about one fifteen dash ten point too but overall throughout the whole trial they were objecting on this that it was intent of joining in their plan to go beat up at least the the deceased and then he went to the farm for whatever purpose as they went to the ba think i shot somebody i think i killed but that's really the crux of what's at issue here because all the other things were personally observed the you know fleeing the demeanor of the of wilson the  the gun being produced the pieces the gun being thrown out certain pieces a gun being saved the safe pieces the gun being found later those saved pieces a gun the action a description from one of the witnesses the all the  happened in the restaurant prior to this event about how she was let go and how she was angry there is a lot of corroborating evidence here that make her scotia any of the make and more credible so the evidence in this case really was overwhelming call it harmless call it not closely balance either way this conviction should be affirmed now to the personal knowledge of the admission i believe you address that with co counsels and whether you are playing devil's advocate or not you are asking questions of literally the points that i was going to make this is an admission the state was was bringing and they were not bringing him statement in his treatise or those articles that this is not covered by that and whether we agree or we disagree it would be a reversal of all of the cases in illinois that if the side of this issue for us to accept you hand written so it's not repeated twice it's only wants it also comes in as a peach meant to say that charles wilson's testimony wasn't damaging it absolutely was at one point well they are not it doesn't matter s in which any state finds it necessary to neutralize its testimony given in court its purpose is to neutralize not  to give another version but simply to destroy the impact of this the testimony that's given and in this case if you look at what the witness said in court there is nothing to well in this case they come this sudden lack of memory alone is damaging in this state should be permitted to neutralize that because isn't the purpose of of impeachment as opposed to the subset of that evidence that came in statutorily through one fifteen ten is to say what we always told all the cases say it's not for proving the substance of the statement it's only to destroy the credibility of the statement that said on the stand all right so if that is the case the only possible statement that could be destroyed by that neutralized by that is his professed lack of memory and the professed lack of memory is in consequential because it doesn't damage the state's case only what you really are doing is the fin end of the way it's to try to get it in as substantive evidence and not to repair any damage done by the testimony of mr charles wilson in addition to having a lack of memory about anything that he ever said before he had a lack of memory as to whether the defendant was his i'm i'm missing something here is that if this evidence is admissible for one purpose i mean is it or is it not was admissible for the purpose of substantive evidence under one fifty yes so what do we do when evidence that's admissible for one purpose is being challenged if inadmissible for some other purpose well it's the same evidence but if they slop there is sort of an alternative argument hey it's substantive evidence one fifteen allows the first portion of the grand jury testimony to come in as substantive evidence are we talking about in here or what are we talking about when the evidence was a witness shouldn't be allowed to get up there and only be confronted with one of these prior statements and then go on to deny all the others and suffer no consequence for it there should be consequences for for denying your prior  ground said that is hearsay i mean the reason you can't use a prior consistent statement is because the prior distance statement is yours of course you know i nag him and that's supposed to be made about but that the thing that's not aren't in the theory for outlawing prior consistent statements so this is a major break that without one gets under the analysis that when those statements com consistency is measured against the trial testimony not between the prior statements and that's what all the cases say so when these prior statements are inconsistent with the trial testimony just because use of multiple prior statements on their one fifteen hangs on the notion that it is used usable for purposes of the  is coming in under any weight under the grand jury but it is a state's position that are three of them were admissible under one fifteen yes ten point one and then being again getting back to the point of it was a personal statement coming in through the grand jury by by excluding these admissions under the person for not having personal knowledge of the underlining that in some ways is a punitive measure and not witness gets on the stand and testified and doesn't change their testimony everything he has to say comes in and we're not even discussing it now the field that the state either did not or could not get him to the grand jury so we don't have a grand jury could not again that did not get into the grand jury will now it doesn't come in because before we said it was really good out of it and now selling it's not because he didn't swear under oath and he doesn't have personal knowledge of the underlying  there is no will and personal knowledge for admissions means that you had to be and i will be but if you take a look at the legislative history that was expressed only talked about as something that  personal knowledge is not satisfied under the theory of the people who are the proponents of this legislation it wasn't seen as satisfying that requirement you had to have according to those people who brought this idea to springfield and got it passed you had to have seen the subject matter observe the subject matter of the statement and not just the utterance of the state that's what they said that th crime and then hide what you did and so how is it you how are you hiding what you did not stop to stop the clock at the time he walks in to his family home confesses to his act how is that a conspiracy what happens later clearly it becomes a conspiracy between charles wilson and all wilson to help him get out from being arrested and prosecuted for this but where's the evidence that that conspiracy even if you consider it as part displayed openly in the car and there is evidence in the record to suggest that it was also for a robbery they were waiting in the car for the right time for the you know we're going to go in the back where the cash registers are so it was one that was  so in terms of the conspiracy telling somebody that you think you shot somebody is seeking our help in the situation you find yourself in now what about here is a little bit sad you know offering we're getting a harmless or you can call it that closely balanced there was overwhelming evidence of guilt in both cases and and in this case well you know we're talking about very little evidence as you stated before we have two of the witnesses who are part of the crime we have the gun pieces we have we have her testimony but moving that she was there she's there she's called the whole thing ok argument is judges didn't know that they were going to its argument under section ten point two but that's generally applied because that would be a witness who refused to testify even though charles wasn't cooperating he was there on the stand testifying and so that was how the state was proceeding but defense counsel was very clear of page f f thirty five of the record that he was opposed to statements that did not involve personal knowledge and he did use the term circumstantial guarantees of trustworthiness that is language contained in ten point and it also very aptly describes all of the criteria of ten point one and close trial there is a post trial motion and a discussion regarding personal knowledge and the trial judge explicitly section one fifteen point one does require personal knowledge and that means a first hand account because then the witness his statement is more reliable with respect to impeachment your honor is noted that the purpose is to destroy the witnesses credibility in this case charles destroyed his own credibility he offered almost no affirmative testimony he did not injure the state's case did not damage the state's case you just disappointed them explicit deal on the record about making not being charged he talked about his involvement in the murder thing a weapon and he didn't get charged anything he's going about his life as far as we know right now and unaffected by this case the both of these witnesses lied to the police their stories were rife with consistency is inconsistency is confusion paris thought that he had been shot and he jumped in the trunk of the car their stories were very disorganized biased and in light of the fact that charles three witnesses had serious problems and the grand jury testimony would have come in but charles witness charles with a should a terrible witness that if that's all the jury had who do you believe that they would i have just one player but all the states said at one point that this the conflict renzo wilson's confession was only admitted one time against aircrews actually admitted five times the state question charles wilson about it two separate against erica and that's the problem here thank you very much all of you for a very well written and argued case we'll take it under advisement issue a ruling in due course