his old college buddy this is the nd issue in our brief i like to address the trial judge learned trial judge said it was an entry interesting question and i think it is it was an over here i know this court has recently addressed overhears the this statement it was cited below and i understand your honour's point but i believe they did not were not citing it for precedent but i believe just to mention that this issue has been somewhat touched on  here at the defendant what happened was i believe the facts are somewhat undisputed so i think this is an over review when we're talking about statutory interpretation what happened  the defendant was overheard with his college buddy making statements that actually would later be used to provide the motive for the killing and then the tapes were not returned seventy seven days later  judge would sign a different judge than the one that submitted to the one that approved the over here they were turned to him seventy seven days later and there's it is unknown why that happened so we do have a consent and i say that focus why or why are we talking about the title to the title three when really what we should look at is the focus on the defendants privacy rights and it doesn't has the right to privacy mr keller is being recorded and of what happens later is that these tapes are not maintained about nothing we know nothing about what happened all we know is that these tapes were  specifically excludes from coverage of consensual recordings i believe that title three is the state pointed out it says that there shall be no violation of the law by someone such as swaggart if he wears a w were tampered with or so it is the defendant's burden to prove they were tampered with and what i'm saying is no i cannot point to an allegation that mr de luca came up and said oh they were tampered with they were tampered with he didn't know when he couldn't in good faith argue that seventy seven days i believe in there is no express case i can point you where there's a presumption of tampering i submit to you that is more appropriate in this case we have a seventy seven day delay to ask that of the prosecution who  those suppressed tapes would have been available for impeachment the they would have been available for impeachment however that could have changed the whole way maybe he wouldn't testify who knows that would be a strategic decision made by trial counsel and you could put all of th the remedy back to issue one what should have happened here i believe is that mr kelly should have been confronted and arrested i mean they had me over here at that point when they confronted him in his office garage and increase or so proposition being nice at the totality of the circumstances and you see one thing after the other you can see that what happened here is yet in the police can trip they can lie we all understand that but when you look at these continuous things that happen through good morning your owners council me please the court my name is amy with her i mean assistant state's attorney and du page county here on behalf of the people of the state and i think i'd like to start with a subject that your honour's touched upon briefly and that is even if you were to accept the defendant's arguments on either or both of the claims of your own issues one and two and you were to find that either or both pieces of evidence should have been suppressed any error was harmless beyond a reasonable doubt th there was some technical violation well i think that's so your honor there were two prongs to the defendant's complaints about the eavesdropping the st was a claim to notice violation and that was based on the fact that and that's a different provision of the statute it's provision eight dash eight and that's the the ten days notice prior to their use that hearing and the defendant's complaint on that had to do was dated back two years to the bond hearing and the grand jury proceedings so that ten day notice requirement had to do with that and so the state argued that that that argument if there was one to be made should have been brought prior to the bond hearing because there is specifically a provision this is that i wouldn't generally chase an argument that i didn't need to chase if i believe that underneath as and the statutes and the way it was decided followed by the trial court which we all agree then you have as is still good law in so far as if you're looking at an issue of compliance which is to look and see what the purpose of the largest of the statute is and was that compiled and in a case like this where there's been no allegation of tampering and i would point out that mr did testify at trial that the recordings as played that he had listened to them and that they were correct that there was no allegation of tampering so that the technical whether there was or wasn't a technical violation  was being asked and it was reviewed during trial in that same basis so you know that's that i think further possibly muddied the waters but the end result is the same and that is that it should that it was rightfully admitted and as your honour's have pointed out even if it had been even if the eavesdropped reporting themselves had been suppressed as substantive evidence mr schweigert also would have still would have been able to testify to the contents of the conversation during his testimony and based on the fact that the defendant something i don't in the in the motion at the hearing i believe they were in the written motion to deny bail they were simply reference to the fact that the conversations were recorded and then obviously following that all the proper notice provisions were were complied with the stars sending notice  the defendant and then obviously discovery rules as well as the right thing but we didn't know if they were going to use them absolutely or the defense could bring it up but the defense was aware what was put on notice it's just an issue of that ten dates which correct correct that was our primary argument yes and i think that's the good the judge a good judge to callus agreed he did point out that this was as far as that ten day notice requirement it was not timely it was something that the complaint has to do with its use of the hearing and the defendant not have a notice that it's going to be used he obviously had two years of notice that the eavesdrop recordings were going to be used at his trial and he had them in his possession for those years as well briefly and the motion to suppress i think it's very clear from watching the video that while as the judge the judge did find this perhaps the officer's photo may be downplayed as opposed to as your honour's mentioned how much enthusiasm should they use when they handed defendant four minute conversation attack from approximately nine hundred and fifty eight to two thousand and three roughly on the video tape those the time stamps that the detectives on at least four occasions when defendant is the one creating the confusion and clarify and say you have the right to stop this at any time this indicates that you understand that you're agreeing or waiving basically to be able to talk to us that's a requirement for us to talk to you but if it at any time judge did determine the for purposes of the th amendment analysis which is determining issues of custody or interrogation because defendant's main claim was that were not maintained one of his claims was was that he was interrogated in the vehicle so that's why he was arguing that he was in custody at the at the parking lot and so therefore he should have been entitled to miranda in the car but he wasn't given it and he was interrogated the judge really kind of rejected that the state never said i believe that they had planned to use any of the statements in the car there there weren't any substantive statements in the car it was small talk about defendant's business but i believe actually it was and i don't recall the exact date i think it was after the fact that the judge the callus went back and just clarified and said just s clear the state has an intent said that they intend to use any conversations in the car but if they did they can't come in and everyone agreed that when defendant involved finally at the police station after a few hours which was further evidence that he understood his rights that we were earlier correct there was a previous domestic battery incident the officer who arrested him testified that he arrested have been seen advise him of his rights and defendant immediately invoked his right to remain silent yes so that was additional evidence that he did understand that's correct i did it i believe at that point so this was they had no suspect in this case i mean this case while it was relatively new had effectively gone cold until mr schweiger contacted the police officers they immediately flew him up here the just regard to the question about the seventy seven dollars days i believe the only interpretation of this record is that the tapes were true seventy seven days and no way could that ever be construed as immediate and the city where the really i believe we don't know again there is no allegation of tampering at the court below i can't make that here and i don't believe the odds are so much stacked against a criminal  well i think that's an impossible situation i think when you you can't recall exactly what was said and how it was said from conversations from i think common sense dictates you just can't remember exactly and words matter in this case and i was going to say that takes it away from bradley because in bradley the court analyzed the situation type of situation with a delay and then said but there's no evidence of a delay here and that's what that case was decided upon so i don't think that asking you not if i understand no there is no case and i look for one trying to put a presumption in there and there isn't but there is also no case requiring the defendant to show tampering and it's an impossible burden so i'm asking you to not place the burden on the defendant and look at the delay and see if there's a substantial explanation we're not saying that oh there's a everybody's calling this a technical violation ok we're not saying if you make a textural but technical violation then there must be suppression we're saying you have to explain what  i'm not asking you to overrule the supreme court but that's why we get into preemption the federal law was violated here and i understand your point your questions regarding whether or not that statute should be considered i said if you it should waiver from the judge like the statute allows and they talk about how this argument was waived in the state does but as you can see on page eleven day twelve the record attorney to look is asking for more keep saying it but right now it doesn't exist thank you