resisting arrest and related charges essentially preventing the jury from viewing the evidence related to the murder paltry as it was in a dispassionate manner at as the errors in this case are numerous there are seven substantive issues in the briefs i'm prepared to answer any of your questions that i plan to focus on the second third and fourth issues in the briefs and unless you're honest before otherwise i had planned to start with marital privilege in april two thousand and four when lauren nelson was still married to evidence of domestic violence so it's with regard to the marital privilege issue so as i said in april two thousand and four when laura nelson was married to joe joe allegedly told laura that he would kill don kassovitz the victim in this case but that statement should have been excluded as subject to the statutory marital privilege illinois middle privilege prohibits one spouse from testifying to any communications admissions or conversations within the marriage subject to certain exceptions none of those exceptions apply in this case i was not charged with a crime against laura he was there were no children involved the case was not about  message violence within the marriage against laura render the marriage in shambles and require that the statement be admit that the judge's action carving out that new exception violated the separation of powers doctrine in addition to the plain language of the statute the judge was simply not at liberty to carve out a new exception given that the language of the statute was clear and unambiguous and the legislature did not provide for any mechanism for the judge to create a new exception  as part of that statement coming in the jury also heard a great deal of evidence of domestic violence other crimes evidence can wholly unrelated to the murder of john kassovitz yet the jury heard extensive evidence that your direction yes all of these issues are preserved they were contemporaneous objections there were several pretrial motions litigated on each of these issues and they were all included in the post from mission  has nothing to do with the issue of things so beating his wife is irrelevant to whether he committed this murder that he may have had a jealous motive could be relevant to motive but him beating his person who deserves punishment regardless of whether he actually committed this murder and the jury heard other evidence that joe was a bad guy who does it you know in trouble with the law they first heard about with the joe fled who can who can speak to why you'll feel it joe himself certainly and you know he didn't testify but the inference is to be drawn from the evidence no evidence of flight can be admitted to show consciousness of guilt but i'm sorry but it is admissible only when the record shows no other reason why the defendant would flee and here we have multiple other reasons to defend it would flee laura testifies obviously to the  that the police officer testifies that he's looking for joe for the domestic battery the beware of alcohol tobacco firearms and explosives agent testifies that they're looking into joe for some firearms offenses which is how the the a t f he ends up in the second instance of resisting that the jury hears about surrounding shows house along with the ham and slots joe tells his wife that he's can see that he's always afraid the police are going to come to his house because he keeps trying to there he keeps guns that he's not supposed to have there's multiple pieces of evidence in the record illustrating that joe was fleeing from police for the domestic battery and for these guns and drugs he had in his house and not for conscious of get consciousness of guilt for the murder plus especially notable is the fact that at one point he fled distances he fled into chicago which if he suspects that the chicago police want him for murder it makes no sense to flee into the jurisdiction that wants you for the more serious crime so this evidence of late showing that you know that joe is a bad guy fleeing from the police having i'm standoff with a swat team and federal agents should never come in this was far more prejudicial than it was probative of anything  as well as you know the domestic violence and what should not have come in in violation of the privilege that the jury heard a lot of evidence the judge easy as a bad guy they did not hear a ton of evidence that he was involved in the murder of time catfish i realize i'm not out of time  simply shows that he's a bad guy which is not what he was on trial for her testimony regarding recognizing the gun she could testify to without testifying that he used it to beat her so that my argument has not been that that person has many need to be barred altogether simply that it should have been much more limited than it wa good morning and may please the court before i start with some of the arguments i would just get the chronology correct here the last person to see the victim alive saw him about one o'clock in the afternoon of june twenty ninth two thousand was found about ten o'clock at night when she goes back to the to the trailer on june twenty ninth two thousand and four the first hammond police officer confrontation took place on july twenty second two thousand and four and then their arrest and that the second hammond confrontation took place july twenty sixth two thousand and four so it was a three weeks to a month after the after the murder itself that the defendant is first flees from him a police officer and then essentially arrested after barricaded himself in his house with regard to the first issue the marital privilege issue under no rational system of law can anyone say that beatings and death threats are should be confidential marital communications and that's why we have in this case we have a defendant who is threatening to kill not only his wife at the time who was by the time of trial they've been divorced they're still divorced they were married at the time of trial he's beating her he sticks the gun in her mouth he threatens or he's a jealous man he was jealous of just about anything he she did he locked her in the house at various times to keep her away from different people one of the people he was jealous of was the victim donna because of each he specifically threatens to kill her and the victim in fact at one point he takes or after receive receives a phone call he goes into a rage threatens to kill the victim and and his wife throws her in the back of a truck she's  egged takes her over to the victim's house pounds on the door of the trailer and then takes her back home even if she never said anything in this case about the actual statements made to her by the defendant those actions would still have come in those actions are in no way privileged his binding and gagging her and beating her and sticking a gun in her mouth and that's relevant to the gun because she had done a fison the murder weapon she says this looks like the gun the murder weapon was destroyed before trial in a perfectly legitimate manner by a t f and a separate prosecution and that's not an issue here but she had done a phase a picture of the gun and says this is the gun it's important she has familiarity with the gun it's been stuck in her mouth it's been stuck in her head she's been threatened with the numerous occasions but going back to the actual time is in this is june twenty fourth this is about five or six or five days before the murder itself when he makes these threats taking over there in the car exception to what she would consider to be well i'm suggesting that even if you take those statements out the result of the trial would have been the same i'm arguing that those statements should have been admitted and the reason they should have been it that it is is really three f and this relates to public policy and it's important to remember that these are questions ultimately of public public policy in the one hand we've got a public policy with regard to move a privilege which is intended to foster and promote harmony in the marriage i would assert as the tragedy did that's kind of a joke in a situation like this where you have a battered woman who by the time of trial is divorced there's nothing to save in this marriage there never was anything to say when she went  on the twenty fourth or slightly between the twenty fourth and twenty nine she went to the hospital having been beaten and filed all filed a complaint in the arrest warrant was issued so the purpose of the statute a marital privilege just for a promoter harming on the other hand we also have a legislative purchase purpose in our domestic violence act which is to prevent domestic violence in the state and i would say that's an overriding purpose in this in this particular case  the other thing to note is that the statute itself provides an out or an exception for cases in which one or the other spouse is charged with domestic abuse or the other and this particular case this defendant was charged with domestic abuse of his wife  that i think it is appropriate just because with this legislature is getting to that is the content and context of the statements and as i said before there's no rational system in which beatings and death threats should be considered intimate spousal communications and once the statutes create an exception for those type of cases it shouldn't matter whether we also you know he was charged in indiana with that i don't there's nothing in the record to say what happened with that case he was also charged at the same time with a federal case and so so he had a lot of charges have been with we want to two statements but the vast majority of the conduct took place in indiana the marriage was in the end in indiana the other thing is there is an exception in the case law for for statements that are not intended to be confidential the usual situation for those is where husband and wife are making having a conversation that conversation is is easily accessible to another's another person in the room it takes place in public something like this i would also argue in this particular case that this was not intended to be confidentially he's making a threat to his right telling her to stay away from donald to say that the intent of the statement was to keep her away and to have her tell our brief and they're talking about the marital privilege and they talk about the privilege issue here results not from a policy of safeguarding the quality of evidence at trial but from a policy of promoting family harmony independent of what might occur in some trial at a future date and then they cite the united states court in trammel versus us and stating that testimony it's testimonial exclusionary rules and privileges contravene the fundamental principle that the public has the right to every man's evidence as such they must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good trance sending the normally predominant principle of utilizing all rational means for ascertaining the truth there is no public good whatsoever promoted when you shield death threats and beatings and the statements made during those beatings and i would assert that the judge properly ruled that the marital privilege did not apply in this exception in this instance and in even if it did as i said earlier the jury still would have known that from properly admitted evidence that this defend it was a jealous man this defend it was a violent jealous man who went to the very victim's house and pounded on the victim's door with his wife it is a crime yes  communications but i'm arguing that they're not worthy of the marital privilege given the public policy behind the marital privilege it serves no purpose here and i just quoted from the us an illinois supreme court's there is  a policy decision that we're only going to we're going to strictly construe those in favor of the of the public policies that are intended to be followed here and in the public policy behind promoting marital harmony the opposite w take place here if you were to shield these these statements from from admission soul are you suggesting that public policy should trump that or a vision well  when you point out in criminal law it's seven twenty five i also yes five slash one fifteen s sixteen in criminal cases husband and wife may testify for against each other neither however may testify as to any communication or admission made by either of them to the other or as to any conversation that tween them during the marriage except in cases in which either is charged with an offense against the person or property of the other well here the defendant was charged  admit he was not charged in illinois but it was charlie brown the pop i'm arguing that it does apply to our yes and that that that is our assertion and that taken in conjunction with the public policy that is expressed in another statute which is the domestic violence basically indicated that the law had failed to keep up with modern notions of what it was what of you know what should take place in a marriage and that a lot of things that have been swept under the rug traditionally in our society could no longer be tolerated  and i'm indicating that i think the marital privilege insofar as it would protect conversations like this is one of those things that the legislature is now expressed in another statute a disdain for and i would say if you read those two in conjunction with each other the public policy of illinois is not to say that beatings and death threats are privileged spousal communication in any of it yet do you you any of those brought before a court in illinois no they were not he was not charged with any of those acts in life he was there was an arrest warrant issued for him he was arrested on those charges on or on a complaint for domestic battery in indiana and the record does not indicate what happened on that indiana case concerning the domestic violence there one number of was this dovetails into the next argument which is the evidence of flight this defendant fled from the hammond marked squad car and police officer in uniform who appeared in his neighborhood and he took off on a high street chase and eventually lost the police officer not the one through indiana he went through illinois this is that this case takes place in that section of chicago which is on the far south east side of chicago where the streets  when he did so our argument is that he had reason to know that the police were looking for him for the murder in this case and therefore his flight is relevant right is generally  relevant if the defendant knows that he's being sought by the police and you can show those circumstances and in this case we put in two big pieces of evidence the first was the first july twenty second is where the officer chases him the second is the incident and the at that turns not only from flight but also to the circumstances of arrest which again the circumstances of the rest in this case show a there's an inference that he had a guilty conscience if you remember that the the crime in this case was committed sometime between one o'clock and ten o'clock on june twenty ninth two thousand and four in that period the defendant is seen with a bleeding arm by two different people he goes to a person's house takes a bath has somebody washes clothes he has given self a haircut things that he'd never done in his life with these people before very unusual and of course we know the defendant did leave his blood at the scene his blood is found on a piece of broken glass at the back of the trailer so the defendant tight and those like glass was not broken before one o'clock in the afternoon on that day the finn also says to his to a to a woman friend of his and then to his own daughter he asks have you heard anything about a murder in head wish in a trailer while we put on evans to show that there had not been another murder in hague wish at all for more than twelve months before this crime so the afternoon of the crime he's already asking about something that the police don't even know about yet he's already assuming that somebody is going to come and look for him he gets an overnight bag he does this thing where he goes down the alley of his house and jumps over the fence and gets this bag together and then goes to the this mr byass house and delivers a bag and of course we know later that the bag was left there and we also know that in mr barnett his house with the murder weapon itself was found along with a pill bottle from the victim's house with the victim's name the defendant gives his friends two completely different stories about how he has this cut on his arm on the friends give different descriptions of how much one one of the woman says it's very bloody the other guy says it's not as bloody but he'd already taken a rap off by that point to the one person he says he was drunk and fell down some stairs to the other person he says i was in a high speed chase with the police and i crashed my car and broke on some glass which we also know wasn't true because there's nothing wrong with his car when he was later arrested so the fact that he gets an overnight bag the fact that all these things show that he knows the police are going to come after him for that he knows the police are looking for him and the fact that he also may know the police are looking for him for domestic violence although there's no evidence that he knew that his wife had already filled out a warrant he knew that she was no longer at home remember she moved out of the house and when she moved out of the house he also mentioned to another woman well you know we were ocean has reason to know certainly that the police are looking for him in the murder case he has reason to believe that the police also might be looking for him for his drug and gun activities and never the defense wanted that in this case they want to date information so they could make this argument that he's really not fleeing from the police for the murder he's fleeing from the police because of the drug in the gun case or because of the domestic violence case but not because of the murder an argument is well that any site that one's case and where the the police go to utah and the defendants are one for a state and then they're in a stolen car and and there's this chase and the question is you know why were they eluding the police there that really in the end the court said basically well you know you just because you commit one crime  commit multiple crime doesn't mean that you can't have an inference and all the inference is still valid now the fact is that you can infer that he was running for several different reasons but that doesn't invalidate that he was feeling for this particular reason as well and so that that that's certainly relevant evidence  the final issue counsel argued today was that the other crimes evidence the domestic violence evidence and again as we pointed out that the motive for this case was jealousy jealousy of the wife and this findings although the defense hasn't included them in the record made findings detailed findings about all these these events and i would say only about a quarter of the evidence that the state sought to introduce was actually introduced there was a whole bunch of more bad stuff about g don't think it was in improperly significant portion of the trial but there was there was a couple whitney all she testified at length to it and i don't think it was in an appropriate amount of evidence on on that issue  again the standard is you know whether the judge abused her discretion and when you've got clear evidence that she was exercising her discretion before trial and keeping most of this evidence out that bolsters the fact that she did not abuse her discretion in allowing this she she waited she let some in and she kept most out and that is by definition an exercise of discretion and in this particular case it went directly to the motive to show a jealous angry man who was to kill the victim because he thought that he was fooling around with with his wife at the time he served rations  she didn't run the guy she didn't tell the police if she had i think it was certainly would have been legitimate but but you're right there are public policy exceptions to the traditional rules of patient point plant privilege pastor client privilege so those kind of traditional privileges when we're trying to be such a public way she didn't take an action here well maybe live together or she will take action in terms of going to the police she went to the police and live together for some  there's there's a lot written and the the law recognizes the difficulty in getting out of these relationships and some women's self esteem is so low that they're they're attached themselves to one after another of these abusive individuals many times these women were abused as children things like that so it's not it's not uncommon that she wouldn't leave me that she did leave eventually she did you know that we have evidence in the record where she eventually goes to the levels of marriages but this is so far to the one level of relativeness that i think it it goes beyond the bounds of what the law should except i had just have three brief points and of course any questions first regarding marital harmony there are numerous other cases that involve troubled marriages and threats against third parties and sizes  d particular cited in the race as moves ard that involves a marriage with a cheating spouse plans to divorce and nevertheless communications from the husband threatening the wife and the wife's lover were subject to exclusion because of the marital privilege to the legislature has amended the marital privilege statute as recently as last year they also amended it in twenty ten they have not provided for the kind of exception t state seeks here finally regarding whether the state was intended to be confidential statements or presumed confidential here there is no evidence suggesting otherwise it's inappropriately speculative to suggest so and frankly absurd given that nothing made angry a number of talking to other people or any questions happy answer them otherwise in my reply brief adequately responds to the state's arguments thank