good morning are both parties ready to proceed yes in my work at osha i have the opportunity to pursue many records in many cases and yet as i read the record in this specific case i was absolutely floored when i came to the defense's cross examination of the state's fi result witness was a police officer who disclosed the existence of a supplemental report that the defense had never received from the state and discovery but rather than approach the bench deal with the discovery violation defense counsel kept asking questions about the contents of the unknown report and the answers became more damaging as the witness went on and on his questions to that witness alyssa did facts that had not come out in any other way a trial that this witness had received a phone call from quote another potential victim officer had made a supplemental report about the call that the victim did not want to be involved and then counsel asked quote when you say another victim of the same charges or different charges and the officer answered it would have been similar charges and tell the left at that this is literally the last testimony the jury heard before it went to the livery counsel did not seek a limiting instruction or move  crimes testimony and then did nothing to attempt to correct that there were so many points it was defense counsel could have stopped this from continuing to happen one he could have objected to calling the officers a re witness that all she provided no testimony regarding any material fact that issue in this case nor did she offer anything that directly contradicted the defense's witness to assume that she mentioned the report the counsel knew nothing about ask for a cyber object of the violation do something saying to the judge i was never given this report i asked for a continuance i mean the record clearly shows counsel surprised but rather than handle it in a reasonable fashion he just kept going which leads to three he could have stopped asking questions he's an advocate for his client he is the only advocate for the his client in that courtroom it was not his job to satisfy his own curiosity about hey what's in that report by continuing to ask questions that he had no idea about the answer the fact that it was defense counsel who introduced the language referring to the other alleged incidents as charges this in even come initially from the witness this came from counsel he said were these the same or different charges with an implication that there may have been other criminal charges which was just not the fact there was no indication whatsoever that these may have been criminal charges he injected that into the dialogue by this point it is hard to say as a straight face that counsels acting as an advocate because at that moment this case completely shifted it was no longer he said she said because at the  hour the defense introduced a nd she said this is incredibly damaging given the nature of the testimony and given the closely balanced nature of the evidence for then counsel could ask for a limiting instructed move from this trial there was a question to which the witnesses response is nonresponsive he could've sought to strike that testimony from the witness and because we simply have no idea what the jury was thinking as it went into the deliberations having just heard this sort of bombshell information no guidance whether or not because there is substantive evidence it was utterly irresponsible for counsel not to seek some limiting instruction for the jury or move for a mistrial it's really well established the damaging nature of other crimes evidence it's clear this kind of evidence it's not objectional because it has little progress of value but because it has too much potential progress or value the risk is that it will over persuade a jury who may then convicted the senate just because they think he's a bad person that he does this kind of thing over and over again so let's just get rid of them right and so to dig a hole this deep and this damaging and this prejudicial and then keep on digging this is so far below prevailing professional norms utterly ineffective this is literally the most damaging type of evidence that could possibly come up in this type of case the purpose of discovery rules are to provide that a sense of protection against just this type of surprise and unfairness yet with or without the state's violation if there is some surprise cumple still has an obligation to secure that damage in whatever way he can in order for it not to result in this type of prejudice to his client now in response the state said just as well as some kind of trial  strategy counsel wanted to avoid drawing attention to the office's testimony yet in this context it makes no sense there's no skipping past there's no burying this in the middle of someone else's testimony you can't gloss over this and keep going when it's literally the last testimony the jury hears and because these allegations no one had any idea what they actually were other than there was a victim maybe there were charges the jury was really left to speculate incidence even more biggest there is a pretty axiomatic maxim every new attorney learns in law school if you don't know the answer tone ask the question counsel asked not just a question he asked question after question filed into a disaster he then make no effort to ameliorate the mess that he had made and so in considering whether counsel provided in effect of assistance by all prevailing professional norms this is far below any standard of reasonable reasonableness there was just no conceivable benefit to mr was it with regard to allowing his for his counsel to elicit and then allow the officers testimony the stand again this this case rested so heavily on the jury's assessment of credibility including the credibility of this there was a she was there the introduction of victim was quote similar charges at the end of the trial was really unbelievable prejudice for the jury to go into deliberations considering for these reasons we respectfully request that this thank you counselor justice hutchinson do you have any questions thank you understand it was officer allen on the witness list that was tendered prior to trial ye was ok so that means there is a possibility that she will testify there was yes that's correct had they had any other conversations either in front of the court or that they admitted outside of the presence of the court concerning officer allen when i think the prosecutor and defense attorney let me make sure i'm understanding that the officer was not called in the prosecution's case and she's she was called only a rebuttal witness but i'm not aware of any specific circumstance outside of the trial itself that had discussed whether she was going to be called ok and the fact apparently is if i am reading what happened here correctly or if i'm trying to understand it correctly officer allen was called in response to witness winston's testimony about the flirting or what she considered flirting or inappropriate conduct of the victim here that's correct  in that regard isn't the real issue here why didn't why didn't counsel for mr was a move to not let her testify at all absolutely i think that was that's the st place that counsel erred because she was not an appropriate rebuttal witness again had the state called her in their case in chief that's one thing they disclose  all but your argument before the court and in your brief appears to be one says he knew what was going to happen st of all he should have stepped asking questions he should have maybe tendered a limiting instruction he should have moved to strike or in fact when he said to the court judge i don't have when the jury was out judge i don't have this anywhere in my file to move for mistrial you don't really argue do you that he should have moved brief i did address the fact that the size of discovery violation he could've objected to her even having been called particularly the fact that a rebuttal witness can only be called to contradict testimony as to material that none of her testimony was relevant or even appropriate for purposes of rebuttal you know kind of regard to this leaving her business card etc you know she didn't even contradict this witness winston and  so you know there was sort of you know sort of a continuing downward spiral of situations in which defense counsel just completely failed to advocate for his client and that was you know kind of the beginning circumstance that he needed to have said something in the fact that he'd been subject to her as a rebuttal witness was itself unreasonable ok but that's really so you believe on page fifteen is where you emphasize that he should have done he should have objected to her testifying at all but basically don't you frame the issue that he should have done things after the fact to eliminate her testimony yes that is that as well he was ineffective in multiple ways with regard to her testimony and if he makes these motions in front of the jury or outside of the presence of the jury doesn't does the is the jury left with some question about what the problem is here isn't he drawing attention to this fact in a sense to potentially but but again with this type of propensity evidence or this type of  evidence one having them brought up at the very end of the testimony courtis found specifically that things that are brought up at the very end of trial are particularly in the minds of the jury and so st it was unreasonable simply because of where in the trial it team up that there wasn't any way to reasonably try to sort of gloss over this but nd with bringing it it's  so well recognize that bringing in this kind of propensity evidence usually the state tries to do it and there may be an entire evidentiary hearing prior to trial as to whether this can come in it is so axiomatic that this is incredibly damaging to to prove a propensity your honor we simply don't know that is part of sort of part and parcel of this whole problem is that we do not know whether on in terms of how they're going to hearing or has there been some argument on the motion in advance whether this would meet the standard set out by that with regard to  you know kind of the prongs that need to have been met the proximity in time the similarity as cetera et cetera and so with regard to this case counsel did file a motion saying you know we don't want any other issues brought in the supposed to be in the state said sure that's fine they conceded that issue they said you know we're not going to try to bring any of this in and so it's such a hypothetical to see you know could it have been brought in potentially you know had that been litigated in some way and hashed out you know maybe this have risen to a propensity evidence that the state could have brought in we simply don't know and that was the issue the judge you know defense counsel didn't know there's no explanation and so it just left the jury to speculate well gee how bad was this other thing and may have been even worse than what we're hearing you know than what they're alleging at trial so that was part of the  or with the witness who believe your name was went off who testified about the what she saw between the victim in this case and the defendant that testimony from allen was sufficient to support the state's position that they had tried to reach other witnesses and that she never called them so you are not objecting that she could not be called correct we are objecting that she couldn't that she should not have been called as a bottle and the reason for that is that she you know obviously she was not a witness to you know witness cents observation between the the defendant and his accuser but officer allen testified that she gave a police card to two totally different employees and so she didn't even material counter in any way the fact  that went on herself when she testified said i was never told to call the police i was never given a card you know and so even that element which one was not a mature is not a material issue is the collateral issue she didn't even  defense counsel state immediately respond to allen's rebuttal statement as trial strategy to avoid highlighting a drawing attention to attention to this potentially dangerous damaging testimony you said that would be crazy but what else could counsel say when this came out sure well the st thing that he could have done is the nd that she disclosed a report that he didn't know about he could have objected at that and he could have stopped right there and so the fact that he continued to ask questions as soon as the police officer disclosed this you know saying you know going so far as defense counsel acts asking her quote when you say another victim of the same charges or different charges he had no strategy to try to minimize this in fact he continued to dig a hole even deeper and deeper in the way that he characterized it frankly made the officer's testimony that much worse and so it wasn't reasonable on that regard either to to suggest it was trial strategy when his questions to her didn't in any way suggest that he was going to try to just sort of concern for the people of the state of illinois may please the court then it was convicted of aggravated battery and criminal sexual abuse for his actions while training the victim at her job now defendant is attempting to attribute his conviction to five or six words of testimony that occurred in counsel's brief cross examination of a police officer and even though the defendant's entire appeal is based on this officers reference to a supplemental police report the defendant has not even included this report in the record on appeal and its contents the actual contents of their order not even known and despite this despite the fact that officer allen  there was a brief mention of another incident by an unspecified perpetrator defendant insists that he was convicted on this basis and not for the not on the basis of all the testimony that was presented to the jury now in making this claim of ineffective assistance the defendant bears the burden of establishing both prongs of strickland the defendant must show prejudice and that requires not only the possibility but the reasonable probability that the jury would have  balanced it was not close to balance because evidence was presented that corroborated the testimony of the victim and this court is required to consider the strength of all of the evidence in the people's case in contrast to the evidence in the defense case and contrary to what opposing counsel are means this morning this was not simply he said she said argument that people didn't present the victim's testimony the victim was a new nurse trainee being trained by the defendant and there were numerous times when the victim in the defendant were in a room away from other people the victim testified that the defendant assault the victim and made inappropriate remarks after it was clear that the victim was not going to return any of defendant's advances defendant asked that they that she keep quiet and keep the conversation from anyone else and that she didn't want anyone else to get  upset the defendant and the victim or later seen at a nurse's station and the defendant put his hand on the victim's and she pulled away and told him to stop the victim promptly reported this incident to her supervisor and she met with the c e o of the hospital the following day and along that line the victim's testimony is corroborated by two additional state witnesses and those would be the c e o of the hospital and a police officer excuse me the  victim and discussing discussing sexual topics with the victim however defendant claimed that the victim was flirting with the defendant then made a statement to kobe that was very specific and  day he trained the victim and the defendant didn't respond to the question and started talking about his fiance and how his fiance was ill apparently attempting to gain sympathy the officer reacts the question and then defendant instead of answering the question again and turn the tables and then claim that the victim initiated contact with ted and made sexually suggestive remarks to him which was inconsistent with what he told the o james cole the defendant claimed that when he was talking to the victim he was uncomfortable the victim was was almost stopping him the victim pried up the topic of living in california and defendant said well i made several several comments and i was trying to bolster confidence and make her feel good about herself the defendant admitted then that he did not  response the officer didn't repeat any of the victim's specific accusations to the defendant ever defendant also said at the end of the interview he said well i heard that the victim said that i touched her breasts on her buttocks and i didn't do that credibility now well we asked the court to consider that evidence against the evidence that was presented by the defense defendant's testimony further expose the weakness of his case to the jury defendant testify that  he didn't make any sexual remarks his only physical contact with the victim was when she backed up into him when they were in the patient's room defendant also testified that he didn't match the behavior when he was speaking to the c e o and that is contradicted by the c e o s testimony the defendant's story to call it was also inconsistent with this story he gave to officer schwartz and river so in his testimony defendant is now providing a rd version of events and he admitted that he referred to his plans to move to california and then that is again contradicting a statement he made to the police officer he admitted that he gave the victim his phone number but he said it was so they could talk outside the hospital about the victim's allegedly inappropriate behavior and to talk about personal matters that the victim had brought up to him now this is all despite the fact that i would be more reasonable if he was concerned about her unprofessionally didn't take any steps to report her he never brought any concerns about her professionalism to anyone's attention at the hospital and in addition the defendant's testimony at trial was often non responsive to the questions that were being asked now the only other witness presented by the defense was brandy swenson and her testimony is highly highly suspect and should be viewed with great great suspicion  defendant did not disclose her as a witness before trial she came forward in the middle of the trial she said she heard about it and then she called defendant she heard that his trial had started and she and she said she didn't know the circumstances of how he was fired but she had information that would help them now swensen had worked at the hospital so she one thousand and nine and she'd known to find it's two thousand and ten and she knew the victim actually before they worked together at the hospital she said she had known the victim since the victim was seventeen and swinton testified that the victim was acting friendly toward the defendant and this was you know after lunch time now the victim testified that her training began at one pm so any of these observations by swenson could have happened before the training began and before  e incidents that were that were described by the victim but occurred in different rooms in the hospital so swensen types therefore swenson's observation of the victim was not of the victim after the  s and swensen testimony suggests a bias against the victim and a prior experience with police that she was not happy with she referred to that and you know pretty swenson said that she knew that the that the defendant had interviewed with the c e o on the rd but the defendant but clinton was so interested in helping the defendant however she didn't go to the c e o of the police with any of her of her her claims and but she didn't know that the police had been at the hospital investigating the victim's claims even though dana dana allen was there in full uniform making statements from various hospital employees and swensen said in the post trial motion testimony that she had seen argument that was the last thing that the jury heard after the four began deliberations now the jury heard thirty three dollars pages of closing argument and instructions that inform the jury of the elements of the crime so these isolated  two witnesses who corroborated the victim's testimony and greatly weaken the defendant's credibility for these reasons the people have that the conviction of kind of convictions for aggravated battery and criminal sexual abuse affirms thank you thank any other crimes or bad acts testimony your honor that was discussed in the record and it does not appear that the trial court ever ruled on the defendant's motion and i think what the what the what the discussion was was that the state said that they would not bring anything up if the defense didn't open the door i think was was how it was stated in the record ok and calling swinson is what opened the door is that what you're saying no i'm saying i'm saying that i was i was saying that officer allen was a proper rebuttal witness after swanson testified that she had no ability to report this crime to anyone or to speak to anyone at the hospital alan could then come in and testify i get my card people at the hospital bring just once and kind of come forward with this testimony or with this account earlier that is that was my argument ok well you're to be saying that her presence officer allen's presence at the hospital should have alerted swinson to to this issue the issue of what the defendant is it that unusual that there is a police officer and a hospital on any given day at any given time no no you're right your honor i'm sure that that is that is a common sight however swenson claimed a great claim to have a great interest in this case and she claims you know if i was if i was so interested in a former coworker that i would call him up and offer to testify at his trial i think i would have known  considered with great skepticism because she she claims that she you don't was was list so interested in defendant and that she had information to help him but she didn't know the circumstances of how he was fired but yet she comes she comes forward and wants to testify at his trial and and she could have come forward sooner and this once you know once she heard that defendant had been charged she could have gone to someone to hospital and sent hey this is what i well st of all i wonder when you say neither counsel had that report i want to play now as they did in my brief that their report was apparently attached to a post around motion in the record but yes the reporters and the record so the trial council have the report at some point because he refers to it in his post trial motion and i'm sorry and then i lost the rest of your question i mean it's not really helpful for him to have the report in his trial motion it would have been helpful had he had the report at the time of trial but as i recall didn't both attorneys say that they had not received alan's report prior to  trial i that that may be possible i mean i know that the state's attorneys say that one point that you thought of the discovery was timed or i don't i think what i'm arguing is that whether or not ten trial this court under review is being asked to make a determination without having this report being in the record on appeal i think is more important but but my question is on the day of trial when he when the state's attorney opted to call officer allen if he did not any sort of report concerning  activity at the hospital how did he know well i believe he was calling her to rebut swenson's testimony that she was never given the opportunity to give the police her version of events and officer allen was simply testifying that she when she was at the hospital on certain days and that she gave her a card to how how the how officer and we got called well it was she was on the witness list i mean she what she testified to in rebuttal was that there was a supplemental police report that she she submitted but there were other police reports i'm sure that were that were fully turned over i mean i'm i guess i'm not understand your question that you know she was as close as a witness a the absence of a request by defense counsel well i mean it was you know the people directing pardon go ahead i'm sorry justice you know you're putting out a little bit was there a request in writing for this report i don't believe there was a discovery requests by defendant however the people acknowledge that you know police reports you know of officers were disclosed as witnesses have to be turned over know this is a this is a startling claim and this is a two part past and so that we have the bottom line as to be was there any prejudiced of this defendant as i pointed out in my review of all the evidence you know the evidence was not closely balanced but anyway there was not a discovery request by the defendant and was there not a reasonable probability that the result of the proceeding would have been different given the fact that this damaging testimony came at the very end of the trial you did talked about instructions to the jury and closing arguments but  closing argument is not testimony nor are the instructions that the jury is admonished that it's the testimony of the witnesses that the jury must consider and deciding whether to return a verdict and so this came at the very end of the testimony why wasn't there reasonable probability that the result of the proceeding would have been different but for defense counsel not taking any of the actions that opposing counsel enumerated in her argument well that's simply because the you know we have no idea as defense counsel argued today we have no idea what the jury was thinking they could have been thinking about all of the you know the three of it the three witnesses that testified for the people and weighing that against the defendants account which was totally not believable and the defense has defended the testimony was changing you know they say that you don't have to you don't have to work hard to remember what the truth is but the senate kept changing his story and so you know he wasn't sticking to one story which which you know destroys his credibility entirely then you have a another what another witness once and whose testimony and the timing and the content of her testimony have to be considered highly suspect  so really the jury was not presented with two equally plausible versions of events this evidence was not closely balance and the fact that this was the quote unquote last thing that the jury heard you know we're talking about a few words of testimony and which was which were brief and detailed reference to a different supplemental police report that hasn't even been included in the record on appeal so the people with would strongly argue that this case should not be decided and that a slave basis but it needs to be decided on the entirety of the evidence and the fact that there was no prejudice to defend that thank you i have no further questions miss and even though defendant counsel didn't formally request allen's report explain to this court why defense counsel's reliance did no such report existed is not reasonable and did the trial court squarely order in this case to the state to tender all police report determine that we don't have the report here and dissent you know i want to point out the defense counsel elicited testimony on the cross examination the victim of the victim had tol may allow the defense counsel to assume that either no or port exists or that it's been tendered and said to me this seems to be a clear discovery violation yet your argument and your brief center around defendant's failure to specifically request alan's report mean was there a discovery violation again or there may have been there is no evidence of any knowing discovery violation the trial court did not make any finding them and in knowing discovery in violation and again you know if anything this was apparently an i i will keep it brief the st thing i just want to briefly kind of dispense with this is is the idea that somehow this report needed to have been included on appeal in order for the court to address that you know that's just really a complete red herring the state never denied they had a report and in fact allen testified as to this report you know at trial and so this report existed you know there's no question about that and the issue is not what the actual contents of the report were the issue was what alan out just as just not about the sufficiency of the evidence about the closeness of the sufficient evidence that's the question before the court and in this case you have two people who are essentially describing an interaction between themselves on the stay and there's no witness there's no witness who saw any interaction between the two of them the only you know witnesses that could describe any interaction at all was brandy swenson who just saw some questionably inappropriate flirting behavior you know what we don't know that that was at the same time or not there was no outside witness to any of this and what we have here basically between mr was a fiscal position and mr phyllis's description is a difference between you know with and you know maybe h r needed to sit down with these folks and say hey let's go over the employee handbook about what's appropriate you know workplace behavior between the two of you right you know miska soulis you can't be flirting and saying these things and talking about how you're unhappy with your boyfriend and need you know anything that's mr was excess money basically that's you know h r intervention maximum but instead he's charged with felony criminal sexual abuse that then requires him to run history as a sex offender this is the this is what the jury has to consider right now you know he absolutely talked about you know some of the things that occur between the two of them and in fact the fact that some of those things were actually consistent with each other goes to support his truthfulness as well finally the jury did find him not guilty on one charge the sexual abuse charge that he had touched her breast and so i really do think that to with regard to allen's testimony again you know kind of asking for inference upon inference alan had no idea whether the supervisors passed her cards on to any of the other employees  at the facility furthermore what swanson observed you know the fact that mr solis was flirting and kind of acting inappropriately and touching him a little bit no reasonable person would think oh hey i've got some information about why this person was fired when i have no idea why he was even fired you know i may or she may or there was no testimony she actually saw the police there that she witnessed that this is not the kind of thing that i that someone says oh hey let's go to the police about this it's only after the fact learning about the criminal charges and the nature of those charges that she thinks oh hey this might be relevant but no one contacted me no one reached out out to me about this i feel i have an obligation to kind of pass this on just in light of what he ended up getting charged with because now i understand it's relevant and so you know again this idea that alan would be called when source in rubber was actually the police investigator on the coat case he was the one in question thank you counsel just to such a sin do you have any questions yes let's just take your last statement counsel if it was the absolute appropriateness of her call being called as a rebuttal witness why didn't why wasn't there some action to try to prevent her from being called i think that was ineffective on counsel's part i think there absolutely should have been some action to prevent her from your client seemed to have a copy of the supplemental report and i may be wrong that it was that the state actually denied ever having it but at this point that the neither one of them had it the minute somebody get smaller like that why doesn't somebody object correct that's exactly our point why didn't the friends counsel objective sense counsel as an advocate the nd he realizes he doesn't have this report you stop asking questions you go for a sidebar with the judge you bring this up you say hey the court ordered the state to turn over all this evidence whether it was inadvertent or intentional or you know we're not arguing we're not alleging it was intentional it's neither here nor there whether it was intentional or in t the nd he learns that there's this report you stop asking what's in the report let's find out you know let's see how damaging this actually is no you go to the judge you say judge i believe there's a discovery violation we never got this  report that's ok that's what any appropriate counsel stuff sort of am ok but that's that's the point here is the only place you argue this issue is on a discovery violation you do not argue it at least my reading of the brief on ineffective assistance of counsel you say he should have either asked for a mistrial motion to strike cheering instruction you don't say as to the in an ineffective assistance is that he should have asked to not let her testify  violation it is a part of that as well in our reply on pages six pages and so sorry to get it right on pay just for the bottom floor in the bottom and the top of five you know again we re address the fact that alan did not provide appropriate rebuttal testimony this wasn't regarding you know sufficiency of the other didn't so this was you know squarely within one of the issues that the defense counsel failed  on and you know again i don't know if that answers your answers your question ok i appreciate the answer thank you very much and justice ridge and i have no other question thank you just which isn't just susanna do you have any question no i don't think you and i also have no for the question and i want to thank both parties for your arguments this morning  this case will be taken under advisement and a disposition will be rendered in due course times to clerk you may close the case and terminate the proceedings thank you