first case on our colleagues morning with his agenda number one case number one zero four four four three people versus laurence lovejoy continuance that preceded that motion this trial came to an end on february second a friday as to the evidence the case was going to be argued on the following tuesday which was the next court state's d n a expert and she got a fide certain areas on the bathroom tile that had d n a on it and some other testimony the defense said there and it's just this one just something the witness's testimony on direct examination went into the area of saying that she had done the three swabs run at the edge where there was under the threshold and two at the center and she said it was apparent  blood everywhere it was all done staying everywhere and the prosecutor designed directly for the cross and the prosecutor said well what about here and we're both here well here she said yes yes yes it's all  account blood it's all one stain that was on direct examination and that's what you say here here and here was that to the three separate swabs that was the one to where i was cause it's hard to say i thank you for referring to print the clear print in the center and then over on the white strip on the side that area too so i know i wasn't then and see what he said it's hard to be from the record what he said but this the state's attorney yes at the center portion she said well it's all been same this is sixty four the two over the sixty four the three and the area ridge detail identified by mr keith meaning the prominent area compared between my client's left foot and she said again it's apparent blood which is consistent with having originated from ellen and the state's attorney then reordered reiterated that this area and this lot is the impeachment by omission it's misleading affirmative we in the report where she says and report the i was so tired and had a limited p i can have just one minute sort of twice but it's certainly fair cross examination but she never put the exact conclusion that she may in this courtroom in a report he sixty four thirty thousand well there's that and there's more i agree she admitted that conclusion and the judge said it's fair to say she would mooted that conclusion but it was affirmatively misleading because if she had only said those d n a at the it was something to test for a memory test the shows but it indicates blood and then she went further and did d n a testing of found these two different things the ten b one swab is the one that is negative because the didn't term aqua blue can you explain to us your theory of how this this evidence benefit could benefit your case you have against it was was not permitted in  yemen the motion that was made monday afternoon had a proffer and it was the judge we've been telling for the last two court dates we want to get this expert but i got an expert now and it's dr karl reich and he's his prophet is in the motion and he says he's a number one the test that was used by this camp is a very sensitive test so if it came up negative that's very strong evidence that there was not the act at that we'll say so what did he have the run of the house for two weeks five days there wasn't a opinion rendered by any technician of some kind that the print was was made from stepping into the into the into th area and everything good there is a footprint in blood so the hope the hope her and i don't mean to to belittle it at all and i'm not the whole purpose of your of your claims here is that that print may not have been made the morning of the crime the morning of the crime but may have been made at an earlier time exactly it's a preexisting print and i can tell you exactly how well that that i wouldn't exactly how that there's much i would reason what happened valerie the mother wife goes to work early aaron goes to school earlier than mr rudd through a rise from his night job he's working the midnight shift it's off to seven the morning he comes home gets the key to the house the townhouse that's my inference but there's a causative direct evidence that he was in the bath tub changing the shower head and i would add a battery test i saw that and i read that you know even back a long was not the hands on killer he was there is the cleanup we have to show that footage was not made that saturday morning with attempting to do that and the way that the trial lawyers tried to do that was to say look the american amps their d n a expert but there was a clean up attempt apparently and there's just a like a the ball amount of the foot and the part of the big toe and it's pointing like forty five degree angle yes that one piece of testimony by mr keith says that and you know it's not so clear i mean he says that if you drop blood directly on it it would obliterate the print and if you washed over if you have a wave action the bloody there were spray to the jury but he said you know we don't know everything they happened of course but the fact that blood could have gotten on that print is why the l c violet test turned purple rulings is the state right that abuse of discretion would apply with respect to the continuance in the calling of the defense expert i think so that's the standard review that i think i put in my brief as well so back to where could could you infer from camps report that you did have that the vet she found blood was presumptively present or not only on the margin what i call the margin which is the threshold report said negative for blood on its swab ten b one which is the center area swab so where are we in light of that abuse descript where where is he in light of that that's new and damaging testimony that should have allo swab at the center of the pile but the but the agent absorbed all the heme which is the human globally which is the word they've been using in this trial heat h t m e all the heene got used up now i know she's out a february he said they anticipated used in her testimony no problem with that so all we want to do was call this expert in this expert has made a proffer and it's monday afternoon if we couldn't go on tuesday we could go on wednesday i don't know why on this record they could've gone on to say they want to press that but we have a guy who can come in and say that's wrong that the heene got used up that's bad science and he's a ph d molecular biology and he's in hillside so i think that what we wanted to do is show that we could put a football sized hole in the window of the case by referring of course to people versus rayford until until this testimony mr fossett there was in the defendant's point of view no need for an expert to counter camps testimony well this is a difficult question because every defense says judge we knew from the get go that they were going to say a footprint in blood i mean that was a press says well it's got to be from body fluids doesn't have to be from blood remember the breast swab there were two different profiles on her left breast one was my client's maybe from his hand maybe from saliva you don't know the second could be picked up by lying on the bed sheets by shaking hands so our argument was we've got d n a at the center of this tile that is the victim's but it's not necessarily from any body that was missing from the report was the effect of the l c very on the potential effect the l c d and learn well she didn't say it was all one stain and she didn't say that her her  until she hit the stand to testify about it and she didn't use the word false negative that's my words but that's what it is she saying look the team got all used up because they had me with the eat the evidence stack but the l c the discovery rules play into this for example with respect to the expert right whether it's a new opinion it's questions that were either asked or could have been answered very so you've just presented the defense theory of the case i mean certainly you were capable at the time of deposition right with respect to the camp to say you know what about this you know what about this and then i can't may have answer they could have it may have been i don't know it may have been the decision of the fence was this is pretty good let's go with it now that say that they have the burden of saying this is your opinion in a written report  do we have to look behind it or can we depend upon the state to make the correction of its own error if it's in error and seems to me that if you're talking about a formal  discovery opinion by expert the expert should qualify their opinion in writing if they need to qualify the opinion especially a false negative was it was that opinion even needed until the the defense theory of the case was further you know further the whole i'm not a parent i think the beginning she did the direct examination before any cross was that it was apparent blood on one stain and the defense never thought there best saturday morning which is easier to say if it's a foot stepping in the blood where as you know mr keith said well it was just the first shot in the title he musta stepped in some testimony and we had a way to meet it that was taken out from under us we had a state's witness give testimony that was one hundred eighty degrees opposite of what we thought she was going to say and while we could have done on this my impression on me is that they thought they had something pretty good to stand on and that was their defense that was they were going to use that he said on the record we planned on using that to undermine mr keith's testimony and where they were going was it was innocently foot innocent footprint create existing because he had been under the house so we our whole defense collapsed when we couldn't bring in the ph d expert who was really really harmed by this testimony that we we say whether it's a discovery violation or not we just wanted to call the expert and i was just starting to talk about the rate for case in the fifth district you know it's an old case someone with a lady said the man came up to defend it came up to the kitchen window and shot his rifle through the window shot my friend in the hip fortunately she survived a small hole in the window it took the jury they're going to buckle to opening statements  delay the trial from the sixth which is tuesday the seventh which is wednesday it probably would have been sufficient time then to bring in another witness they didn't need another rebuttal but they had their cross examination they knew it was going to be said there's absolutely no prejudice to them in our case was heard on measure by not being able to call a ph d molecular biologist to refute it he was all used point in talking about issue two which is the continuance issue but there would have been no harm in delaying the resting there was some additional hard work we had to reopen but we didn't get the witnesses and it's not a fair trial and i've asked the court to send th it please the court my name is aaron o'connell on behalf of the people of the state of illinois the defendant is really splitting hairs here with respect to this footprint abah dense and i want to step back a little bit and just put forth what the people's case was surrounding this evidence the first point to just keep in mind is that the victim is found in a bloody bathtub she's in a bathroom that is covered everywhere with her own blood reddish brown we can just infer from the fact that she's sliced through four major arteries that this is all the victim's blood the people found through their evidence technician bathroom child that had this this ridge detail i want to make clear that there was one footprints there's not a clear print and a blurry print there was one print it had a portion of it was clear enough to be identified the other portion was blurry the testimony is on page sixty five forty one on the record where the right key says he talks about this blurry point and he says it was his opinion that this was part of the footprint but the amount it was in the blurry portion of the footprint so and just to be clear as to what ten be three related to on the tile there was this ridge impression then that's where a footprint that all turned purple when it was treated with t v there was a portion that was under a strip under on the threshold of the door and it was on that portion that there was still a reddish blood i mean you know reddish but it area blood type color that hadn't been treated just so this is this explains why this t m b test reacted positively to this portion but it didn't react positively if you can believe tamara can we like we can make a portrait underneath the right that hadn't yet been treated without c v so there was a portion that was purple that contained the footprint and then there was a question that had you have been treated but was still on the tile so she treated that with the t m b and that reacted positively but everything that was purple it was that portion when she slobbed it that didn't react to her t m b test however it did show that there was d n a present that belonged to the victim the fair inference here t m b there are two different tests that are usually used and so when it reacts positively to one of those tests then it's presumptively blood and so as next case they remove the child to be further examined i don't think that th that it can be said that it's actually blood until there's been some sort of a d n a analysis so then there would be the combination of well reacted positively to the test and i found d n a so this is probably blood so i think that's how it's  the position of the defense that that d n a exist separately from the fluid that it was once carried would have to be present in some form of body cell and so the question in this case is well where could this d n a in this swab have come from we know certain facts that tend to indicate that it was the victim's blood the fact that this was a bathroom that was absolutely covered in her blood the fact that this stain started out when it was first observed being reddish brown by the evidence technician the fact that it reacted to the l c d test all of this points to it being the victim's blood let me ask this question  would it be fair for the defense may don't need my help but would it be fair to them say that's that's fine argument it's one you'd expect to make if i got my evidence in but i really think i'm entitled to my evidence of that the jury can choose between what i'm saying what the state that the peach tamar camp by omission they pointed out again and again this negative result i think that the problem with their theory is that they've never articulated what this could be other than blood and that the defense theory i'm still one council is up here he didn't articulate very clearly what this could be we so we know it's uncontested that there was a footprint that was made visible by some substance defendant has put forth a theory that this was a preexisting footprint i just want to say i want to point to some testimony in the record there was a single print expert this is the only testimony that appears and it is unequivocal that that is an absolute impossibility defense counsel tried repeatedly to try to get a concession that w this could have been a preexisting print that was made visible by blood that appeared later on on page sixty five forty three the witness says that if a liquid of any sort would flow over preexisting naturally occurring latent print if it didn't destroy the print it would obliterate it and prevent any tort any sort of development technique from making it appear in with a sort of clarity that this ridge impression had  couldn't be done he has to explain why there was a clear portion that could be compared and positively with one hundred percent certainty matched in his own print and so the print expert testified repeatedly that it would be impossible for there to be some sort of you know skin transfer of his of his cells under the surface that would then become visible later on so that the re i mean he has never put forth an explanation that is that is supported by evidence in the record that could establish what this reddish brown substance would be that was making th  print visible and that's what i'm arguing is the natural inference and the only one that's supported by the record is that this was in fact from blood i also just want to make a couple of other things clear on the footprint argument defendant suggests that there is some sort of an inconsistency in the people's testimony with respect to a different point and that is where he talks about there being a positive print and a negative print the only testimony and this was by the print expert was that he said that he was sure that he was looking at a positive print impression this is on page sixty seven nineteen tamra camp never made any sort of statement as to whether this was positive or whether this was negative that was in her area of expertise i would just note that on page one of the reply referring makes his assertion he provides no record cite and i was not able to find any anything in the record that would support this apparent contradiction in the people's testimony first that this t m b test is much more sensitive than the l c d test this is something that defense counsel could have and should have gotten before trial if this was an argument that he wanted to make that this was somehow much more probative evidence that this wasn't blood in the people's evidence that it was blood so this portion of his expert testimony should not be considered as part of his his argument that this was responding to new testimony and then  the second part of the expert testimony that he wanted to present was intended to contradict tamara camps theoretical explanation for why the t m b would react negatively i would just like to point out that there were three state witnesses all of whom testified that this was a positive footprint made by the defendant in the victim's blood tamra camp her testimony was largely in terms of the overall context that she did a d n a test and confirmed that this was from the victim that the d n a was present however that print expert and also the evidence technician who saw this print in its original form both testified i think very strongly that this print was made in the victims but at the time of the murder which gives which really makes this this evidence very immaterial in the in the course evidence put forth by the people all of this evidence wasn't dated minted as motive evidence and it was admissible for that purpose there there was a series of that record to me a little bit confusing because there was a series of motions and rulings that took place on this evidence actually the first motion that was brought was a people's motion to declare a declaration of their right to confront so there is litigation on that before there was even really any evidence that was leaked to that that was really at issue and then the second stage was motions in l hearsay rules those were ruled on separately in the court expressly stated that it was ruling on the merits of the hearsay argument before trial there were two competing motions the people's motion to admit this is other crimes evidence relative to i mean relevant to show motive defendants motions to preclude all evidence of the rape as overly prejudicial the court's final ruling on this issue is that the evidence would be admissible to prove motive and the court encouraged and the defendant obtained an appropriate limiting instruction that was read to the jury before this evidence was put in and then it was also read in the in the final jury instructions so all of this was admitted to prove motive as such the hearsay arguments don't really come into play however with respect to the hearsay she noted that the vast majority of the rape related evidence was not even arguably hearsay most of it was given in other forms that didn't involve out of court statements of the victim in terms of the key testimony that that would be potentially hearsay and was extremely significant for proving the people's case was the victim's own statement which set forth the details of what had occurred defendant has argued over and over that this wasn't necessary however it was absolutely essential to providing the context for the physical evidence which so strongly corroborated the victim's allegations so it was based on her sequence of events that it became it her testimony that he brought massage oil for example was made highly significant by the fact that the detectives that went to the apartment right after this found the massage oil and this so this additional physical evidence was brought before the jury demonstrating how highly credible her allegations were that this defendant was facing a near certain conviction for ra especially given the d n a evidence that alternately came out that it was his d n a on her breast i mean there there heard her statement says that it was his saliva  the substance that's present in saliva am the lace was found on the breast in addition to defend its d n a this is strong evidence that this got there through the misconduct that the victim alleged first i would say that we're not done entirely opposed to this quite different a ruling until melendez day is comes down because regardless of whether it's relevant it's not going to be but it shouldn't be negative for our position the distinction that i've drawn is melinda's diaz deals with a case in which a police run laboratory runs a test to identify drug contraband and there is a statute in massachusetts that allows it says prima facie evidence that it was in fact drug contraband the tester no expert actually needs to come to court to verify this and in fact this court feaster really similar presented to establish the fact of the toxicity levels this was evidence that an expert introduced by way of explaining and supporting his opinion that the victim had been poisoned with want lethal quantities of  the ordinary course samples that were taken during autopsies and autopsies are distinct from criminal investigators this whoever this person was he was a person that was working at a crime lab for the government somewhere now and also it was admitted as as just evidence to support his conclusion because it was not the only it was not the yes and under a number of other theories as well i would argue that this is harmless error and perhaps i should take this opportunity to to set forth what i think is the big picture here and if this court were to find in defendants favor on any of the arguments that he's raising it would still be harmless error beyond a reasonable doubt the evidence that linked this defendant to this crime was simply overwhelming and the first key piece of evidence was the defendant's obvious motive here he had raped the victim and she had brought accusations three weeks before her murder and while the d n a test results that would ultimately confirm his guilt we still pending there is the fact that he has demonstrated an exceptional  callousness choi the victim this can be seen in his videotaped statement which was taken the day after the murder not only was he rather strangely emotionless with respect to her but also he failed at any point to comfort his wife for this extraordinarily traumatic event we had his admission to being at the scene of the crime at seven thirty am that morning we know that the neighbors overheard noises at eight thirty am that took place around the time that would have been near the near the end   justice is light we know that he had no legitimate reason for being there and his statement he can put forth no no credible argument he says that he wants or at seven thirty am to pick up a dog for a twelve thirty pm veterinary appointment he clearly knew that aaron justice would be there at that time he knew that she would be alone he knew that her mother had specifically instructed him to not have any contact with her at all during the pendency of this rape investigation yet he went there for no no credible reason finally the forensic evidence here is compelling the footprint events when it's considered along with all the other evidence this is a unique identifier of the defendant and he can be identified with one hundred percent certainty indeed as a defense counsel conceded this was extremely problematic of events for the defendant when this was a print that was made in the victim's wide as the state's witnesses testified repeatedly which indicates not only that this was defendant but that he was there at the time of her death in the bathroom where her body was found so the admin is here is is x is extremely compelling and it this state's case did not turn on any one defendant and now i'm going to actually move on and just make this comment about the admission of the defendant's statement and in his we set forth a number of theories in our brief as to why this admissible the first is that the cherry stout that that took place was was within a proper scope i just want to know in that reply brief that defendant seems to believe that this turns on whether the defendant choice as to the location of the interview whether that was coerced that that is the dispositive issue i just want to assume for a moment that he's correct let's assume that he did think that he had no choice but to move the interview to the police station when he got to the police station he met privately with his defense counsel and counsel not only informed him that he could remain silent but strongly encouraged him that he should remain silent and this was a factual finding that the trial court made based on the credibility of the defendant defense counsel and the defendant and that some page seven hundred seventy seven of the record he met with his counsel went against his counsel's advice and gave his statement regardless of whether he believed he had to be at the police station he certainly knew he didn't have to give a statement at that point and that here is the relevant question i believe i have covered all of the issues that i want to bring up if the court has no further questions then i'll complete my argument thank  a it's a good theory but it's then but is there that's really the point it's not that he made a voluntary statement it's that the decisions that were made were made at the time the officer was holding onto his car keys and i cited case law couple cases with parallel facts which is said that the consent gained and that moment is invalid consent now it's not whether it's a volunteer w college you report would be a testimonial now what does it say is it will soon be clark well you know what it says is that you look at the photograph of the large hole in the blue green and you say it's a you can't say without the toxicology report so the toxicology report tells them now is that true isn't versus clerk or is that the difference between she was poisoned versus she was poisoned by a home she was making a report of past events and it's language reagan and davis you washington in the same way this is a private lab contractor they're making a report of what the numbers are you know  about it mr burke at beginning the other trial said we want all the details one to prove the truth of it you know and care with us as motive evidence or not they had their motive evidence from sexual contact they didn't need sexual penetration answer me this why did she tell the nurse that he she was kissed on the left breast when she told three officers she was just on both that's why she stayed i don't know the and i can't figure out there's absolutely no reason why she would lie she made a lucky guess and she better say something because the nurse was asking her where we touched or she better stayed all the rest because this mr miller said in her statement is there evidence she's supposed to have touched her breast while he's giving her massage and she said nonstop and then he did and then he lifted up her shirt and put his hands on her breast again and so if she did lie to the police and how would i know i wasn't but if she you could argue that there was no saliva on her breast just as well as you could argue that there was a live on her breasts so they could argue there was saliva we get the say it was a hand as mr miller argued to the jury a lot of maybes in this case the store shut before anything else happened she said did she say now i know i got them which she change out of her junior mints top and short short bottoms and put on a new he sure and her levis went to the door she asked about d n a testing and he had done that and had d n a testing been done and d n a gotten detected that would have support of the presumptive positive for blood would it not and he said i'm not sure what you mean by support he said well well indicated it but the then brown stuff we want to say it's rod if we have d n a there and it's probably got we got a body in the bathtub what more do we need it's a compelling jury argument but who safeguards the innocent and who if that's his footprint in blood made in blood that's saturday morning and they're going to convict and they don't need to look at anything else we had our defense of his or her whether it was wise or not that may be a question from the other day for the lawyers to choose to do that but they had a defense they didn't go into battle without something and it was taken away and always the judge if we got a witness who says that's a football through a picture window we want to be able to bring that when is it and guess what he's right here and they've already talked to him tomorrow morning if not tomorrow morning then thursday morning i said no that's not fair and that's simple it can be and we should be a new trial were once  i'll come back on monday if you want me to  four four four three