three separate issues for the court to consider two which are jurisdictional and one that is based on the constitutional rights of the defendant under the confrontation clause of the united states constitution the first issue is whether the trial court order was an order to suppress as is required to give th is allowable under supreme court rule and as an extension to the illinois state constitution the final issue gets to the heart of the matter and that's the question of whether or not the testimony offered by the state was intentionally in violation of the defendant's rights under the confrontation clau complicated question by the courts and one point in time according to you used in an analysis of whether or not it was a motion to assist to suppress evidence or whether the evidence was merely excluded that analysis has been abandoned for quite some time now actually categorizes the motion eliminate any of those types of orders or in fact any ordered into by this be trial court could in fact to be a motion to suppress the question is what was the effect of that order and the illinois supreme court has been very suppress because it kept the jury from hearing any evidence about the identity of the substances seized by the police officers from the defendant's home and that as a result of that evidence at the time to go to recenter was excluded and  so for a while it was a motion to suppress the evidence he knows the ability and the jurisdiction to continue its analysis further it is worth noting that even under the prior analysis that was more detailed and more complicated when there was a motion to exclude or a motion to suppress this particular order still would have been considered a motion to suppress because it was based on pastiche of grounds one of the original analyses support looked at and which i believe the minute referred to is this idea that is and that is the distinction the court has made however the question is was there only an at the time the order was entered was there an alternative means for the court to enter into that evidence and in this case there was not theoretically at one point in time there may have been there was another witness who at one point of time could have offered this evidence and theoretically possibly the court of crete could have created a new avenue to enter that evidence in the state of best for the state could have done so but as of yet no court in the state of illinois has said that the defendant can avoid the finding that emotion that in order entry by the courts was a motion to suppress evidence on the basis that they could have simply asked for a continuance and trying to  gather the evidence in another way that that would be if the court were to go in that direction in this case it would be breaking new ground the courtis been very clear that it is just a matter of looking at the time the mortar was entered and whether or not  that order was one of suppress evidence raising the question potentially whether or not the court that granted even if it had been wrapped requested by the court would have granted emotion or continuance based on the fact that this particular order was entered at him and the motion those are appropriate to analyze and a good comparison for this case if you will be true in the case where they found the court found it was not a motion to suppress evidence on the basis that at the time the order was entered the  jurisdiction under rule six zero for a one because clearly at the time this order was entered it's only effect was and how the the information was conveyed to the jury it did not prevent any information from being conveyed to the jury and that is not the case here w to be violated by that particular test so unfortunately we're to some extent limited in the terms of knowing the exact contents of propecia testimony although we certainly can make some inferences based on the status of the case and our knowledge of her would be a requirement for the for the appellant to really be to really bring the issue before the court when looking at the trial court order in this particular case when the court was saying is this testimony can never be allowed this testimon with regard to other types of orders entered during trial and in this regard the court has two options on how it might rule if it chooses to file the very narrow interpretation of flat that has been adopted by the second district in the defendant's motion with untime need to turn to the plain language of rule six so for a one in the plain language as well six zero for any one clearly does not draw distinction on the timing of the motion nowhere in the supreme court ruled as a state that the court should consider the motions to suppress the suppress evidence differently if they are decided before trial or they are decided during the trial of the one consideration the court has that is a great concern is whether there would be any conflict with other considerations or other  primarily being the constitutional rights again to be protected it's couple jeopardy but as the state has discussed in our brief double jeopardy is not necessarily played here because the defendant has not traditionally been allowed to benefit from the timing of his or her  motion and that it was it when the defendant chooses to bring a motion during trial they waive the right to object that it is in any way unfair for the state to receive review of that decision by the trial made on the timing of the defendant particularly in this case it is very clear that it was a choice made by the defendant and the defendant could have brought this issue prior to trial directly before trial beginning the judge asked if there were any issues the state's attorney they were going to be objecting or if they would like to in any way move to exclude that test and i'm not aware of any case law that says the trial court would be wired to but under under supreme court rule six so for a  constitutional objects and so if the court which is strictly interpret flat then it reads and question what that means about very similar if not identical stache try language for another provision also of the statute or from of the supreme court rule it seems very clear that there is not much grounds for creating a distinction so long as court finds that it was an order suppressing the third issue is the one that  to the heart of part of this case and this that is whether the testimony that the state sought to offer against the defendant was in any way a violation of the confrontation clause the concern there is that misty fair did not actually run the tests on the material seized by the defendant and the question being as a result of was the defendant in any way deprived of his ability to confront that witness and to attack the evidence against him the precedent in this area an expert to testify to materials that are not in evidence or might not otherwise admissible and to use his or her expertise to interpret test results that is very very clear and like to draw the court's attention  one derived from willing matched each other that was a straightforward application of lombardo says experience so they do even the dissent has no problem with the expert looking at test results and providing an interpretation what those results mean the concern the court was with to the extent that the expert was simply repeating the opinions of others always vouching for the worker and in that particular area that created a great testimony that she had made an error that she had switched to labels and mis identified samples and so that was really the focus of concern there not this idea that experts can interpret lab results they did not themselves perform i think it would seem clear based on  performed a peer review of the testing she was involved in the quality control of the activities that were conducted in this particular case and what we don't know to the extent but she did personally review it had this little knowledge of the testing that was performed in it in a role of making sure that it was performed correctly that no mistakes were made so while it would be fair for the defendant to still still be critical or to cross examine her on on  six so for those we know speaks of motions to suppress and as your questions were pointing out before your honor this was an objection during trial testimony that could only have been made during trial mr were growing did not have to bring any of those issues pretrial because the way the manner each party decides to try their case is the way that they tried to try the case it does not mean that one side or the other have to tell the other side what to do and how to the state has it from march thirteenth twenty fifteen when they initially asked for a continuance because miss irwin was unavailable supposedly back the all the way to october six twenty fifteen during that time they could have filed a motion with the court or they could have possibly call them discuss the issues with counsel and brought it before the judge and obviously the state was prepared for some sort of an objection made trial because if you read the transcripts they were prepared for the argument with their own case law and so they could have done a number of things prove pretrial and i simply purely to try to resolve their issue it was the state's issue of evidence evidentiary issues it was not would've been the panel and we are jury and we are in the midst of testimony and by the way the experts testimony not was all stricken the only thing that was not allowed was for the state for her to use the information that was created by mr earle the specific objection was specific and the objection came at a very specific time when the state and tende introduce what miss earle winds reports indicated and said there was no independent review by the expert that the the  results and why would the state calm her if not for that if the if she disagreed with that of course the states would never call her to testify but this picking us to the next issue before we go to the next issue did the state ever say what the nature of the medical leave was in whether just because their witness was a medical leave them preclude her from come to the courthouse testified you know and i did not want to move to the him and that is one of the things that i am i was going to tell the court there are a few things that the objection the state and counsel here argues then it is  the exclusion that your honour's have to look at the effect of the order entered at the time it was entered however at the time that it was entered the judge gave the state at least an overnight from four very it was a it was about fourteen or fifteen in the afternoon until the next day to come back with the turn of the years the judge did not make a ruling per se on that day he did not destroy art the jury and that day and in fact he asked the jury to come back the next day the state member came back the next day and said your honor mr wine is unavailable because of it was mr white is unavailable she's on medical leave all coming actually is right on point on an issue like that because the expert in bull coming seen plenty o police officers that retire from the force and they are unavailable as a police officer but they come back to testify we know that expert witnesses and other witnesses there are medical leave because of for example pregnancy come back  testify so just because somebody is i'm medical leave does not make them unavailable specifically as counsel says at the time of the order or the effect of the order the effect itself did not have an effect of suppression whatsoever and i think your honour's of both hit it on the on the head the evidence was absolutely available for the state the evidence was not suppressed the drugs were reports were available the notes were available and if and i believe there are those that if the state wanted to retest those drugs their expert who works at the illinois could have done it probably within their one day because lab results unlike d n a results and such do not take a long time they have the information they have the capability to turn around and give you back to result the lab result the next day the state did not attempt to ask for a one day continuance an additional half a day continuance it was all o for the state to make sure that their evidence that it was available and not suppressed could be introduced they did not explain to the to the judge why mr irwin is not available at the time and as your honour's pointed out they did not ask the judge to give him an offer of proof i think it would have been very simple and i think the judge was  iting the state to give him information and to provide him with information regarding what they tend to do it how they intend to proceed and that's the reason why he continue telling the state i am going to send the jury home and i'm going to let you come back in the morning and tell me how and what you want to do and how do you want to proceed the state had at least three or four avenues pursue at the time in order to make sure that their evidence is available for them to introduce maybe not through that specific expert but through different ways or even if they wanted to use this specific evidence she could have tested to i don't believe and i don't remember a hundred percent but i don't think that there was an objection to the continuance on march thirteenth but i don't want to be quoted on that you believe it was the state that the court to be clear very similar and it's very similar to the situation where the state shows to introduce early warnings information you know some reports which didn't turn made her an absolute necessary witness against mistrial because they created the situation because mr le grown objected to it i believe that even if your honour's believe it was a suppression issue there is a double jeopardy issue in this case however confuses maybe or this state some of the obvious here it's it could only be an issue of four for appeal under six so four if the problem here is that double jeopardy has attach since the state made the determination of how to proceed and request that mistrial so you're saying if we find  and so there is the first part i believe of the state's appeal that talks about jurisdiction of the court and then whether or not they can appeal in a trial is the first two the state spoke of and unless your honour's have other questions about then the next issue was if your honor and decide to take on this and if you believe that there is  i believe your honour's that it is your review is a review of whether the court properly sustain an objection to testimony that would have resulted in and reviewed for abuse of discretion by the judge and i would submit that it's a review if you we get to this point it's an abuse of discretion because as we know it is not the state's sixth amendment confrontational right that was possibly filed it's the defendant's confrontational right that could be violated but it was because the judge sustain the object and because the judge sustain the objection it's an adventure issue and not a confrontational issue reviewed to know and debt is the way i see the standard or  full comp williams which the state relies on heavily is the d n a issue and the supreme court could not have been clearer and i think by the time  ruled on bleach they have all agreed that the laboratory results for controlled substances is testimonial and that nature and is different than the williams court that was the talking and the society d n a issue the court was clear that says it said that forensic reports run afoul of the confrontational clause because they are williams did the reports made by the request of law enforcement or to state in order to prove the guilt of a defendant that has already been accused and i think that the judge in objection the court in williams and in both coming said that you must look objective look for the primary purpose of the report if it's accusatory and in our situation unlike human action and not related to roe machine produced data the crux of the cross examination when counsel says that it was raw data that there actually was testifying reports the state introduces here it was through their expert must be available even if they possess the scientists that is as in pull coming they call the the scientists was that the state handed over reports lab notes to the expert and asked her to identify them and that was the only information that that expert that they call had she didn't even she did not test anything on her own she did not make any marks or checks coun if this court were to disagree with your jurisdiction argument but i agree with your argument regarding the crawford violation where with that state it will leave the state where we are today which is there because the court really really at that point after the word after williams was very focused on that particular analysis and again if it's relatively straightforward an expert is allowed like they always have to key to the extent that the next period starts of pouching for the work performed by someone else that they're not familiar with or where they simply repeat and say well their report said this as opposed to coming to their own independent opinion about what the results said i think it's worth noting though that eight an expert cannot be found to harris an opinion simply because we share the same pain all that shows is that more than one person has reached the same solution and the more likely not the not the jury would never know that information because the opinion of an individual who doesn't testify probably of we're getting into an area that's not really for the court but just simply stating what the opinion of a non testifying expert was is more  was performed yes yes she could launch she had direct knowledge of what was done she could testify to that because then the senate bill has the ability to cross examine her on the extent of her knowledge whether or not it truly passes muster with regard must muster with regard to be the state's burden of proof the second issue is one of availability and this is an issue where it gets a little bit more muddled because we have two separate issues with regard to the prop crawford violation of the constitution availability is not an issue before this court proffered is very clear that availability only comes into play when there is a potential proper violation when the state does seek to enter into evidence testimony or evidence absent the ability to cross examine a trial in that particular instance the only way the state can do so is first by proving the witnesses unavailable as it has been defined by by the courts with respect to that issue and number two with the defendant had prior opportunity to cross examine again that only happens once there is a conclusion that it was testimonial evidence at issue and that there is potential proffered violation the state in this case is state is test taking the position offered does not otherwise violate property in fact because it wasn't a confrontation clause violation didn't matter of hope or when it was truly unavailable as that's been given by the courts or whether she just didn't want to show up or whether the court preferred to call someone else so long as the confrontation clause was not in and counselor first of all coming with that just drives home the point because in both coming the state did try to enter into evidence testimonial statement contained in a report that were made by a non testifying witness and at that point in time you need to prove this witness was unavailable and the reason is somewhat muddled in this case because we have a separate issue of whether or not this was a motion to suppress and analysis very very different alice is not to step analysis simply consider whether or not evidence whether or not the order prevented evidence from being heard by the jury and whether or not the state is certified that it was substantial impairment its ability to bring it it is quite simply two different