please the court your honors the defense attorney in this case tried to do what defense attorneys have been doing for decades if not centuries challenge the credibility of his client's alleged confession the united states supreme court has labeled to right to challenge a confession essential meaningful and fundamental in this case the court prevented counsel from doing just that when it barred all questions and arguments about alternative ways in which the statement could have been recorded the effect of these rulings was to create an unfair trial where the state was allowed to elicit evidence about why the jury should believe the statement engine east was not allowed to argue they should not in crane versus kentucky and people versus melaku the united states and illinois supreme courts both held that the circumstances surrounding the taking of a confession are quote highly relevant to the question of guilt or innocence and this rule even codified in illinois and the statute which states that the circumstances surrounding the taking of a confession may be submitted to the jury as bearing upon the credibility or the weight to be given to that confession in people versus buck the illinois appellate court held address to states failure to videotape a confession just like happened in this case and held that the method in which a confession is memorialized is quote clearly one of the circumstances the jury must consider when evaluating the weight to be given to that confession the jury in this case was not allowed to consider any of those circumstances or the failure to videotape  as richardson's housel did argue to the fury and was allowed to question the witnesses about the fact that these were not her words that this was a summary that was a she wanted the statement to say and said she wrote down what denise wanted the statement to say all of that was on redirect and all of that was quite clearly aimed at bolstering the reliability of that statement and getting the jury to believe that it was accurate and it was true i'm recross over defense counsel attempted to ask questions about how the statement could have been in fact more reliable he asked if the statement could have been videotaped yes if the police department was capable of videotaping the statement specifically they are saying lance is that they were beyond the scope well beyond the scope as your owners are aware the relevant rule of law here is going to rule of evidence six eleven b and what it says is that in the scope of cross examination includes the subject matter of the direct examination that immediately preceded anything affecting the wit of witnesses credibility and any other matters in the court's discretion well here it's pretty obvious that what defense counsel was cross examining about is exactly what the it what the topic of the redirect was whether the statement was reliable and so will that's the state's only objection to those questions its argument fails because it was well within the scope and as to the testimony that was excluded that the all the questions the court sustained with respect to the detective is that the detective was not the right person to be testifying about that earlier two problems with that argument the first is that the state didn't rain from that argument that it's similar to a speculation objection and here the state only made it didn't specify any grounds for its objection so all this court can look at its review is limited to relevance and the status conceded the questions are relevant if the state is attempting to make a speculation objection it fails detective moriarty testified in detail about the oral statement she testified that she was present for the handwritten statement she testified about how essay lance recorded the statement and the state would have this court believe that somehow the detective wasn't capable of testifying about how it wasn't recorded well that doesn't work the detective was perfectly capable and in fact did testify about the circumstances surrounding the actual taking of the statement and she would have been perfectly capable of testifying about how it wasn't for according and the errors here it's not statement is her own words and in response to that defense no counsel tried to argue there were more reliable ways of recording the statement who was in control of how the statement was recorded the state he made numerous arguments along these lines and the court sustained objections to all of them and so he in fact was prevented from arguing from directly responding to the state's argument and then after the court sustained those objections the state got up again in rebuttal and said this is you know the statements reliable because it's her words and so it was it was one sided the way the closing arguments went the other way the court compounded the error though is by announcing to the jury himself videotaping is only done in homicide cases and this up in the cross examination of the detective first of all that's incorrect the detective may well testified that videotaping is typically done in homicide cases or that it's only mandated and homicide cases but there's certainly nothing preventing the state from recording and it would have been a more accurate means of doing it and the other problem with that is it left the jury with the unmistakable impression that defense counsel steering was inadequate was merrit last the court told to move on move burden to prove beyond a reasonable doubt that the error was harmless in other words the state has to show that it could not even even possibly affected the conviction in this case and that that's not possible that the evidence was not overwhelming apart from this the confession was by far the strongest evidence in all this court needs to do is look at best states closing argument and the state makes pretty clear that it believed this was the strongest evidence  have what we have here is a situation where denise was the denise was admittedly the caretaker at what may have been the time in which the injury occurred but we don't know how it happened apart from the statement there would be no evidence at all as to how it happened additionally the doctors disagreed as to whether significant force was to be used in this isn't a case of warring state and defen are to the state's two experts that they presented one doctor said it would require significant force to create this kind of injury and one doctor said it would not and the doctor who said it would not was a radiologist the doctor who said it would was simply an ear e r doctor w to prove that the mental state in this case was knowledge or intent to cause great bodily harm and that's why the question of whether significant force was required is so crucial and it is closely balanced there is one doctor saying  her state of mind she was permitted to argue to the jury that this was an accident she was your honor and there were two there were three theories in this case and that perhaps seeks to the other error that incurred in this case which should not even be in question which is the rule for thirty one pierre the court clearly did not ask if the jurors under x understood any of the rule for thirty one of the principles and according to the illinois supreme court's decision and people versus wilmington that is clear error so the question in that case is simply whether the evidence was closely balance so even if this court excepts the statement in its entirety in even if the jury even if defense counsel was fairly precluded from contesting the statement which we would absolutely say he was not but even if the court ignores that that first issue altogether the question is simply whether the evidence was closely balanced on the issue of mental state and as your honor just pointed out the statement doesn't indicate she intended to cause great bodily harm the statement suggests two possible ways in which the injury could have occurred the first is that jenny says she got irritated and she shook the child by and the second is that she roughly took him out of this car seat and his foot twisted all the way around well as to the side injury the injury here is a spiral fracture at the lower left to be a by the ankle so say shaking a child star i could not cause that injury so all the sport is left with is she grabs him out of his car seat in this but first around well that's not intent to cause great bodily harm so the issue of mental state the evidence is actually very closely balanced but going back to the first going back to the first issue the statement itself was was the crux even though it doesn't prove it is at least very close on the issue of mental state it was still the crux of the state's case it was still the only direct evidence as to what happened apart from that the evidence is purely circumstantial all that indicates is that you need with the caretaker it and that and that that is your honor noted that the injury was certainly suspect for child abuse but that's there's no other evidence and the statement in the statement was the crux of the state's case and defense counsel wasn't allowed to contest it and people versus melike is telling on this point as well because it says that this defendant has a right regardless of how substantial or infirm the evidence to familiarise the jury with all the circumstances surrounding his confession that's the right that was denied in this case and frankly on earth it was an entirely unnecessary but it was an entirely unnecessary errors both the errors in this case were easily avoided and the court was at fault for not for not avoiding these errors and they precluded denise by failing to ensure a very fair jury trial but also by effectively be her theory of defense in front of the jury when you know you're on earth at this point good morning may please the court the latitude permitted on cross examination or request examination is within the discretion of the trial court and those decisions should be reversed only when two requirements are m defendant before this court even looks at the trial court's ruling it should consider that the basic premise of defendants argument that she was denied her right to advance a defense is just not supported by the record in opening statement defense counsel argued only that defendant did not intend this injury in closing argument and i must say these are without objections and objections were not sustained defense counsel argued that theory and also this alternative theory that her statement to say lance was not accurately captured in the written statement counsel i argued asked the jury to consider who had the opportunity to write down exactly what defendant sat he repeatedly i'm sorry counsel repeatedly argued that a assailants used bud's words buzz words that were not defendant's words and they were knowingly placed there in order to establish her guilt defense counsel told the jury that they knew the defendant did not write those words and that they say lance tonight gave her the opportunity to write out her own statement that the a is a control of the manner in which the statement was presented to the jury defendant had no control over that and this is important defense counsel argued that if the that the prosecution controlled the manner and if the prosecution wanted the jury to know how defendant demonstrated how she removed the child from the car seat they could have presented her statement in a manner that the jury could have seen it for itself but they chose not to do it so there is no merit to a claim that the trial court's rulings to deny defendant a right to present her defense all of these arguments were based on the evidence that was elicited statement she didn't she didn't testify to taking any written words you know to writing down defendant's words or capturing that written statement i mean the question she  any argument that it was not relevant because we've argued in our brief that is relevant objections were properly sustained but in any event whether she could be given up pen and paper was not really relevant because detective moriarity was not the person who was writing down any statement and also it would lead to confusion for the jury because it suggests that if defendant was given her pen and paper and could write her own statement she would have given iraq scope a choice statement than the one she offered and defendant if she had given and a more extent the tory statement or a statement that said i didn't do anything it wouldn't be admissible at trial so it was proper to limit to sustain these objections that would were not relevant would not lead to evidence that supported that could lead to whether the ultimate facts were likely or not likely or probable or not probable and it certainly was proper to exclude evidence that could confuse the jury or lead them to ponder properly sustained objections the focus of redirect was very specific and it had to do with defendant's words whether she made corrections whether her answers were based and it  confined to the written statement and defend to the to the extent that counsel asked questions about that that was permitted to the extent that defense counsel sought to start introducing new questions were there other means w videotape either homicide investigations of belmont western and whether there were video capabilities were well beyond the scope of the redirect improperly excluded and also the trial court properly limited  cross examination more of detective moriarity to relevant and pertinent and matters that would not confuse the jury as an additional matter any restriction on detective moriarty's cross examination the all that evidence about how the statement was taken was already admitted the jury knew and defense counsel is able to argue that defendant was not given the opportunity to write her own statement that was evident from  she took the written statement she described in detail how she went through that the obvious i'm inference is that that's the way the statement was taken and then the defense counsel could argue that the defense counsel that defend was not given the opportunity to provide the statement in her very own words with controlling the statement even if the trial court you find the trial court abuses discretion you should find that the evidence is  overwhelming and any error was harmless the medical testimony was that this injury occurred this spiral fracture was indicative of child abuse that would require some force because this child was not ambulatory addition you had a healthy infant that was dropped with defendant and you know when the parents came to pick the infant up he was crying and shortly thereafter the next morning the the extent of the injury was discovered and defendant statements that she was irritated and frustrated that she shook the child when he wouldn't stop crying that she shook his thighs for two minutes twisting and word and then aggressively grab the child from his car seat in such a manner that his foot would be caught and twists all the way around was ample evidence supporting defendant's guilt of the of the aggravated battery of a child and also  of the trial court may have made with respect to limiting cross examination was harmless additionally it wasn't a trial judge who injected the hot weather did not make this improper conveyance of what homicide following day defect when defense counsel tried that same same line of questioning was the trial court was referring to the prior days reference to the homicide investigations and was not conveying anything doing right here correct there is an error but as in wilmington the error is not playing error and it's not just whether the evidence is close to balance it's whether the evidence is so closely balanced that this error along the scales of justice against friend and the avatar is no evidence that closely balanced the peoples of events that defendant committed this knowing battery against a child and there's no evidence that defendant was tried by a partial or biased jury they please the court i just have two points on rebuttal and they're both to correct misrepresentations one of the record and one of the briefs the first is the state began its argument by quoting extensively from defense counsel's closing argument and  telling the court that these questions were not objected to nor sustained in fact they were the all of the argue excuse me the argument that all of the arguments about who controlled the way the statement was taken whose words that actually were these things were all objected to and sustains the court sustained at least three i believe four questions arguments in closing arguments and they are exactly the arguments the state just said were not sustained additionally with respect to the briefs the state argued that it had not just argued that it had not conceded that the questions of detective moriarty were relevant and i would turn this court's attention to page twenty eight of the state's brief which reads well the circumstances surrounding the making of defendant's confession were relevant for the jury to consider the detective moriarty was not in a proper position answer those questions that is the state's arguments that she was somehow not the capable of answering the questions the state