that afternoon your honors and may please the court counsel my name is zachary rosen from the office of the state a public defender and i represent mr emanuel sure nard your power if prosecutors duty is to seek was ruled inadmissible irrelevant prejudicial by the judge on numerous occasions this constitutes or argue it should constitute prosecutorial misconduct and that's reversible error when it's impossible to clued whether or not the verdict was affected by these prosecutorial actions now in this case it's the repeated attempts of the prosecutor to admit the seven ends after the court had already ruled and had ordered the state to stop going in this direction stop trying to admit this evidence and so this court must consider whether the jury could have reached a contrary verdict had the improper remarks not been made or if this court cannot say that the prosecutor's improper remarks did not contribute to the defendant's conviction then a new trial should be granted and that's what mr shinde art is asking now he raises his claim under second prong plain error because the issue is forfeited though it was for a objected to several times a trial it does not appear again in a post trial motion however it does affect mr constitutional rights the rights to a fair trial and those were violated his case the illinois supreme court grants you five to rule on this case under a second prong plain error they found of prosecutorial misconduct doesn't qualify as a structural defect and that it can affect the framework within which the trial proceeds and i argue that that's what happened here in this arrest for arrested for obstructing justice so mr sharp was arrested he was pulled out of the hotel room that's room number three eighteen the police center circle room they also search a connecting hotel room by walking through the door and that's where they find women and these women really have nothing to do with obstructing justice the presence of them their existence doesn't assist the state in proving any of the elements and it by repeatedly over rules the objection or yes well i think that this issue raises to the court today because the court found the information inadmissible and sustain the objection well there were various places in your argument in europe where you claim prosecutorial misconduct based on the of a prosecutor's question but these were questions which the trial court allowed the direction was over rule and reading of the evidence i don't think that mr sheen art has a claim here if the trial court did not sustain the objections at least the first time so just for one of reference than through these arguments here you're only and so while the state references women in opening statement and there's no ruling from the court yet there's no objection well there have been most of the women and the court heard a lot about this so how could it be the conduct of the prosecutor to discuss in opening statement that which the trial court had already given to will perhaps set instance in and of itself is not a violation would not give rise to this claim if that were the only issue raising that i were raising but the fact is that once the first witness took the stand for the state and this information came was it attempted to be admitted by the state with the first witness the defense objected the court sustained and explained its objection and those sustained objections continued throughout the entire trial up until the point that mr schneider was on the stand in cross examination that's the instance when the court flipped and decided to instead of sustaining the actions that it has sustained throughout the entire trial decided to instead overrule and then it made that information now the decision of the court to change its course does not remedy the violations that occur throughout the entire trial and that's because the issue here is not whether the information is relevant or irrelevant although i think that's tangentially related the issue is whether or not the jury was biased when it sat there and watched the state try to get this information and over and over through the two witnesses the officers and then finally got it again when mr sheen arms on the stand and i think that that bias the jury because the entire trial the jury saying what is this other  that the state wants to get in what's going on in the other room what's going on with the other women and so they think it's a piece of smoking gun evidence but in reality that evidence doesn't go to prove any of the elements necessary to convict mr schneider of obstruction of just well i certainly don't know what the jury was thinking i wasn't in the deliberation room and we can only conjecture what they talked about but the fact that the state tried so aggressively to admit the information throughout the entire trial would have cued anyone that this piece of information is important or at least that the state thought it was important so when the state finally got it in that was a big win for the state and i think that any german ember would have picked is that correct that is correct your honor i'm not arguing that as a standalone issue while i do disagree with the court switching its course and deciding to overrule the objection and admit the evidence i believe that the court was wrong in that instance the issue i am raising is only prosecutorial misconduct and so it should only focus on the conduct of the state attorney continuing to try to admit this evidence time and time again after sustained objections and i think the most  is under the state's witness officer elizabeth alfonzo and this was after the first time the state attempted to admit it with the prior officer mr hurley the court's stay in the objection and explained to the state why this information was irrelevant prejudicial in a sidebar folk with the officer and discuss what they would testify about and i you know i don't think we need to determine why the prosecutor continued to ask these questions well if you would just after you prosecutorial misconduct specifically walk was that constituted in this condo during this examination well i think that the prosecutor didn't ask the question in a way that would limit the officers answer or didn't stop the officer from continuing his or her narrative recollection of what occurred that eventually went into the adjoining room and the presence of the one of the most the officer privy to probably court's rul you know your honor i'm not sure whether or not the witnesses were quarantined whether they heard all of the discussions or the objections that occurred i know that the first admonishment from the court occurred at a sidebar so no one would have heard that the second time it occurred was at the close of state's evidence when the court still at that point thought the information was inadmissible and prejudicial to the judge kevin of benefit of the the subsequent question and effect of the question  what happened next in room three eighty specifically identifying the room which the defense wanted the examination of and bind to so what's wrong with that question well it's not that i'm pointing to that specific question is the only instance where there is error i think i've explained to the best of my ability why that information or why that question could have been phrased differently to limit the officers answer but the objection was objection your honor three eighteen she's already testified it was clear so the defense lawyer is objecting because apparently  hole about the wind up in well i think that it was designed to elicit information that the court had already ordered the states to stay away from and this isn't the only instance and so i don't want your honour's to look at just one example and say well because the prosecutors question there wasn't directly targeted at three seventeen or at about the presence of the women that mr sharp should lutes i think that this court should consider the misconduct cumulatively and should look throughout the entire first witness the second witness the fact that after the state closed the court explained its ruling and the state chose to ask about these adjoining room when mr schneider was on the stand for cross examination i'll just point there were objections that were overruled rule which of the witnesses provided in terms of following the defendant's cross examination or during defendant's cross examination the court overrule no your honor i'm not i think we have to look at the entire trial cumulatively and not only look at that one instance because on its face the state's question is innocent what happened next but the state should have known where the officer was going and should have known that where the officer was going what the officer was about to describe was exactly what the court has said keep out so when the court asked where are we going here the prosecutor should have known that i'm going down that's true in that instance the prosecutor did but i don't think the prosecutor did that when mr shaw nard was on the stand and i don't think that's what happened when officer hurley was on the stand and in addition to attempting to admit the evidence about the presence of the women the prosecutor also references other objectionable evidence other evidence that i think would bias the jury against mr sheen are prevented from having a fair trial like when it talked about mr shard that his behavior that day could have resulted in him being taped could have resulted in him being arrested in a more aggressive manner and this is just one other example that i think that the court can consider cumulatively one way whether or not prosecutorial misconduct occurred here and remember it has really nothing to do with whether or not the information was relevant or irrelevant it has to do with whether or not this court can conclude did the jury rely on this information and i think that the fact that the information about the women about the other room that it comes in repeatedly not just this one instance but on multiple witnesses throughout the entire trial after objections were sustained is what leads me to the fact that the jury would be biased by this type of information because they were teased with it throughout the entire trial they were told in opening that i'm going to talk with you about this information that doesn't seem like it has anything to do with obstructing justice but what it will do is this fairy the character of the time she nodded and i think that was the state's goal by constantly trying to admit this information was to show you know mr it's not your average person he's not a mechanic he doesn't work in an office who works in a rather interesting industry you tell the entertainment industry that some of the state's very first questions about what he did so when the jury hears that adult entertainment industry women in another room hiding in closets that one of them was under age i don't see how this information could bias the jury against  of everything was you know nobody around you know coupled with the jury might be curious as to why the officers persisted well the officers persistent because i assume part of it would be the voices from the room or intervene voice from the room was talking to somebody if there's nobody else in the room when you say i'm going to break your neck or i think i'm going to slap you wouldn't do during begin to think this was all some sort of a pretense they just wanted to get this guy and there were other people when there wasn't anybody he was threatening that it was a bogus diversity violence oh yes yes absolutely the jury would think that i think they very much would and that's why the state wanted this information and so badly but the forces that were heard were heard during the emergency phone call in fact what happened leave in that instance and i think that they probably could have continued the investigation but what we're talking about is whether or not this state needed to rely on that evidence and in doing so whether or not they bias the jury that prejudice the jury against mr shinde art and this court should feel confident ruling under prong two plane air that the air was clear because the state abrogated the ruling from the court it ignored it and that  the rulings of the court and so even though the court flipped at the end and said all right you know i think it is admissible now i think it is relevant here already occurred and the damage was already done to the jury because they sat there watching the state trying to get it in trying to get it objections throughout the entire court and then finally got it in and so i think that this court can't determine whether or not the jury definitively rely on it because that's the standard the only way that you can trial or i think one of the ways is that is finding that the that the information there was admissible and that the jury did not rely on it because if there's any doubt that they did rely on it and i think mr she deserves a new trial because the prosecutor ignore the court's ruling i see i'm out of time and so i ask for a new trial and i'm happy to address any other questions on rebuttal thank you  these girls were under age they were the age of consent no noise seventeen one woman was seventeen one woman was eighteen but two that there was this leads to something salacious and i couldn't find  sustaining objections because they started preparing to this other room three seventeen before it came out in evidence that they were connected that it was a sweet that's the word used by one of the witnesses ok if i'm wrong it wasn't the seventy one of people versus johnson that says any evidence after an arrest is irrelevant automatically i don't see it there maybe maybe somebody smarter than me can see it there but i don't see it as to forfeiture whether you whether the defendant came in and shot the maps would make any sense to anybody so this type of evidence first of all it isn't misconduct it is incredible it's just two women in an adjoining room the salaciousness comes from my opponent  that type of it when this is admissible to explain the surrounding circumstances it's course of the continuing narrative rule which some courts call the co parent never narrative rule to explain why the wasn't serving defense counsel made it clear the women weren't arrested he may have been trying to protect him by making a lot of noise to tell him to hide and that's where they were  i think your honors i'll do my best to address the arguments of the state i believe that the state talked about some false hoods if you believes are raised here in this case and i'd like to address them all briefly  firstly i merely review the evidence as it was presented to the jury a trial the fact that there were women that there were two of them they were closets there was a warrant out for one and one was under age that was the evidence raised at trial i'm not sure of the age of consent being seventeen i thought it was eighteen so just as an example if i'm not sure of that i imagine that there would be jurors that would be thinking the same thing and so my apologies i wasn't making an argument in and of itself about the salacious nature of the evidence and i don't think it's reasonable for me to talk about the evidence in that way particularly the way i highlighted that the state began its  examination of mr shiner by talking about what industry he worked it i think it's the salacious industry of it all the entertainment business and once you hear that fact along with the facts that were sustained is inadmissible throughout trial i think a juror would put two and two together and start thinking things like that i think that was reasonable and i think it was an issue to can remember the you know so the motion in limine aid directly talked about the phone call the emergency phone call and it did reference the presence of the women and the court decided to withhold its ruling about the women in till the evidence was actually i'm talking about the line of work and no it was not no no sir and i don't think that there's really an argument to say that that information should be kept out but it should be considered as part of the cumulative error as part of the cumulative prejudice caused because once and for years all of those facts i don't think there's any way to avoid thinking the things that i was suggesting whether or correctly is that there wasn't any discussion about the room three seventeen yet when the officers are on the stand and that's why the court was standing objections but that type of objection would be foundation and the court made very clear that it was out relevance grounds but again whether you agree or disagree with the trial court about the relevance of this information does not relate directly to the issue before the court i think if you find that the information is irrelevant then the bias that the jury suffered is great but even if you find that the information is relevant it doesn't change the fact that there were standing orders from the judge during that trial that said don't talk about this information that the state ignore what scandal that but excuse me i misspoke not standing orders or orders from the bench ruling on the sustained attractions and explaining to the court explaining to the state in a sidebar and at the close of state evidence why it was ruling on irrelevan grounds and so you know your honour's this information whether it be relevant it could come in but this is the have alternative means to fulfill that purpose served by the contested evidence the other bad acts and so i think that the state raises an argument about bad acts evidence and that's why this information should come in because we learned more about his motives are we talking about admissibility this just wasn't an issue grave by the public in this case i  honor and with that i will let you consider this case under the grounds that it's simply prosecutorial misconduct that you should consider the errors cumulatively and that you should find