good morning your honors and may it please the court my name is anthony j sense i will and i represent mr lawrence bush mr bush was convicted of two counts of domestic battery following a bench trial hearsay evidence admittedly eroni asleep the hearsay statements were made by melissa schol who did not appear at trial however since her statements were made to multiple witnesses and it made it for different reasons i will  st outline my arguments i'll begin by arguing that admitting shuls statements to the nine hundred and eleven operator under the excited utterance exception was an abuse of discretion and will then argue schol statements harrington's office after the nine hundred and eleven call and still statements to cat was saki should not have been admitted under the statutory hearsay exception for statements in a domestic violence prosecution after that i will argue that false statements to the nine hundred and eleven operator were testimonial as were her statements in harrington's office and finally i will argue that the admission of social statements was not harmless ever to be again it was on her statements it takes later statements outside of the ambit of the excited utterance exception because the statements are no longer unreflective here it is indisputable that an intervening conversation occurred between the alleged incident and the statements of the nine hundred and eleven operator schol talked with kat was saki she made the same allegation to his saki that bush caused her injuries that she would later make to the operator it was therefore unreasonable for the courts would meant the later statements to the operator under this exception where the record showed that show had the opportunity to reflect on what she said this court should find that statements to kat was saki should not have been admitted under the statutory hearsay exception for domestic violence prosecutions because so was not unavailable under the statute and because her statements were not reliable the subpoenaed so but did not take other reasonable means to procure her attendance when his stateside a trial continuance in december of two thousand and seventeen and explained schol had not answered the state's attempts to contact or that show was additional effort to get schultz a trial on the day of trial january th twenty eight dollars seeing the record gives no indication on whether the state looks for shoal in the courthouse or whether called has a house to see if she was even there the state always took it as a given sole wouldn't appear on availability is subject to a rigorous standard that the state did not meet when it decided to seek other witnesses now the record does show the state and eighteen but at that time this was no longer a reasonable additional measure because the state already knew szell was uncooperative imagine if show lived in stable housing and the state had subpoenaed her and been informed she was uncooperative it wouldn't be reasonable in that situation to simply send another subpoena was no other action but then decided to just seek out additional witnesses instead it's not reasonable in this instance either the statute requires more for a finding about availability furthermore even if show were unavailable her statements were not reliable the facts and circumstances show the opposite is true statement such as obvious or collins is observation that show appeared to be under the influence when he talked with her or that show had a potential motive to accuse bush because he had broken up with her and wanted her to move out of their room at council court itself also cho was unaccounted for for up to ten hours before making these statements between one am when bush said he last saw and eleven am when she arrived at hest house we only know that it an identified person picked up schol and drove her to have that house these also showed that shows statements lacked the circumstantial guarantees of trustworthiness required by the statute and for those reasons this court should find that schol statements in harrington's office and statements to cat was sock you were not admissible under the statu next should this court examine whether the statements to the nine hundred and eleven operator were admitted in violation of the confrontation clause this court finds statements were testimonial because the primary purpose of the statements statements to have been intended to establish a particular fact here the circumstances included the fact that parents and placed the call indicating the operator you knew before talking to shoulder where she was or whether she faced some sort of immediate danger that soul told the operator she did not want to ambulance and importantly schol told the operator she wanted to make a report she wanted to establish that fact and at the end of the call the operator told sol she was sending officers to talk with her at pesach house with no indication that she would send officers to lawrence bush despite hearing the allegation against him and being told where he was based on that the operator sought to establish a particular fact of what happened to sol the primary purpose of this call was to make a report to continue the confrontation clause analysis there was no cross examination and this court ends that analysis by looking at factors such as whether an ongoing emergency existed on a case by case basis here there was no ongoing american see as i've noted as many as ten hours passed between the alleged incident and chill statements and the fact that shows driven has that house it indicates at least some physical distance between her and bush at that point and the operator did not immediately dispatch officers to bush indicating he was not perceived as presenting an immediate threat on the same note if this court needs to examine the statements made to harrington and her office under the confrontation clause it should find that harrington acted as a representative of law enforcement making sure statements testimonial using the factors relied on by the illinois supreme court in making that determination hemington talked with show in a safe place with no ongoing emergency she also waited for szell with schol for the police to arrive after having made the nine hundred and eleven call she asks specific questions to show in that time continuing the nine hundred and eleven operators line of inquiry on what happened this meets the requirements to find the parents in acted as a representative of law enforcement and the same analysis would then apply to shows false statements were testimony and therefore if this court examines the constitutionality of these statements it should find that the statements made to the nine hundred and eleven operator and the statements made in harrington's office were testimonial and admitted in violation of the confrontation clause finally the admission of the statements was not harmless error without the hearsay evidence the remaining evidence does not establish a connection between scholz injuries and mr bush even the circuit court explained in its ruling that it found bush guilty on the basis of the hearsay statement as such admitting the hearsay statements was not harmless to conclude this court should find all the hearsay statements were admitted eroni asli these statements did not fall under a recognized hearsay exception and a number of them were testimony of this court should reverse bush's convictions and demand for a new trial and at this point i'll take any questions from the court thank you justice bridger's you have any questions i  involvement with any police officers of the nine hundred and eleven operator at that point and the circuit court did not discuss whether it was testimonial none of the attorneys  really put forward that argument except perhaps the trial defense counsel  and in the circuit court's ruling it specifically credited the harrington's testimony as being more reliable as being the one that he he relied on i think on the basis of just out what stock is testimony there it's a lot harder to be able to see a connection a reliable connection between mr bush and the injuries that were caused to statements in regards to to the statutory exceptions and whether the statements are those circumstantial guarantees of trustworthiness i refer to that i refer to that in the argument as as these statements did not have reliability and that they lacked circumstantial guarantees of trustworthiness and of that regard i think that shows statements were not trustworthy for the reason by sort of the argument the officer said she appeared to be under the influence she was unaccounted for for very long period of time so i don't think the statements were trustworthy i have no further questions thank you thank you i have no questions you may have or will have an opportunity to make a puddle like you if you're on your walk  victim's multiple statements identifying him as her abuser her statements were properly admitted under well recognized exceptions to the hearsay rule furthermore those statements did not violate the confrontation clause i will initially address the admissibility of the victim she had been in a motel and had been beaten with a belt on night the victim identified the defendant by name as the person who beat her and told the nine on operator where the defendant was last seen and she was continuing to cry during this entire time so it is clear that the effects of the event are still predominant when the victim is making these statements to the enter the defendant's argument about intervening conversations when the nine hundred and eleven call was made the victim had already spoken to harrington and was psyche however as the facts show she was distraught and in physical and emotional trauma during those conversations she spoke to us psaki immediately upon arriving at hazard house and she showed the woman the red marks that were on her back the victim was clearly still upset from the abuse she had she had suffered and  of the victim stating she did not get medical attention harrington testified that she called nine hundred and eleven to contact the police not because the victim necessarily needed medical attention the victim statements nine  still be admissible it's not unusual for a victim to shy away from medical attention and actually after what saki saw the extent of the victim's injuries she actually urged the vet the victim be exam procedure the people are good at trial that the statements in the one on one operator were admissible under that statute which allows into evidence hearsay statements from victims of domestic violence who are unavailable to testify and even though the t guarantees of trustworthiness st as to unveil ability the court found that the victim was an unavailable witness who had been served and had refused to appear despite being subpoenaed now the defendant can seats and the record by process or by any other reasonable means now given the use of the word order in the statute a defendant claims that the defendant still claims that the people required to take steps in addition to serving the victim with  however that represents an incorrect reading of the statute the victim was subpoenaed and the record reflects that the prosecutors and the court were made aware that the victim would not be cooperate reading in this case the defendant states no authority to support his the people that like to point out the purpose the underlying policy behind allowing are of court statements from victims and domestic violence cases incidents of domestic violence frequently occur in private settings when only the victim of the if there are present and the victim  only person who can offer incriminating testimony against an assailant because these crimes often and almost always occur with no other witnesses and if and could never be prosecuted without the victim's testimony domestic victims domestic violence victims can be recalcitrant a victim can later be reluctant to appear in court and testify against her former and perhaps even current domestic partner because these cases take time to come to trial bec victim may be in fear of provoking further abuse in retaliation for a court appearance against a defendant turning now to the victim's statements and they were actually accompanied by circumstantial guarantees of trustworthiness the hearsay statements in this case were trustworthy because they were made spontaneously shortly after the crime and they were crap or aided by other evidence the victim spoke to a saki immediately after writing said that the defendant had whipped her but the belt the victim that showed what saki red marks on her back there for the victim's account was accompanied by independent evidence to show that the abuse that was described by the victim had actually occurred marks were red which would indicate they were newly and recently inflicted the victim later gave a formal statement to officer collins and her injuries were photographed the victim the victim's statements were reliable because she gave the same version of that of events to multiple people there is a through line of truth to her statements the state presented evidence of the recency ever injuries given the fact that the photos to taken very shortly after the nine hundred and eleven call showed red marks on her body also the photograph of the photographs provide a circus circumstantial guarantee of trustworthiness because they were taken very shortly afterward this is not situation where the victim appeared it has that house and was in an unemotional state and she described abuse by the defendant that was not crabber aided by any physical evidence she didn't show up and say the defendant stuck in the face and gave her a black guy but defendant argues in his brief reply proof that without the ability to cross examine the big the photographs and the additional testimony do not provide a circumstantial guarantee of trustworthiness however that's a circular argument that argument would mean that the hearsa to harrington and what saki were admissible under the few of those hearsay exceptions now turning to the confrontation clause the trial court correctly ruled that the victim statements did not violate the confrontation clause because they were not testimonial here say that i'm on call is not testimonial because it was not made for the primary purpose of proving in fact for later use at trial any example of a testimonial say mooned be a statement made to a police officer or a statement made to a grand jury informally under oath made in a solemn fashion for example you know a testimonial statement would be that the victim statements to officer collins that were more like it's in writing and those statements trial the victim was actually having trouble speaking about what happened to her and this was her st opportunity to speak to others in a place of safety now statements and then when one calls are off and i get rid of describing past the bats and current situation to operator ask for that where the defendant was located and if he was still there how the victim got to test that house and if the defendant had weapons or had a car or of been drinking and  drugs those were indeed those were intended to determine the threat to the to the determine if she was facing any threat and that the record establishes that the police went to the hotel and spoke to the defendant very shortly thereafter so it was necessary for the police to follow up on the victim's koll  again the fact that of the victim said she just wanted to report it is not despise it and that was an isolated statement made at the end of the call and these questions asked by the nine hundred and eleven operator were trying to determine the threat that the were sending a police car over so handsome is simply bringing the victim to a place of privacy there's actually no support for the contention that harrington was interrogating the victim or seeking facts to make a record for later use at trial and as admitted to police that he was angry with the victim the female officer officer brian photographed the victim's injuries and counted more than one hundred marks on the victim's body and in addition the victim  people at this court to find that the victim statements were correctly admitted at trial and to affirm the defendant's convictions  i would argue that i understand that is a situation where the defendant are sorry for me where the victim or the witness is in court and the witness is sitting on the witness stand and his order the victim and the witness never appeared in court therefore subsection c five would apply to people who are unable state has an obligation to bring the defendant to trial within a certain time they subpoenaed her it was clear that they were not going to get cooperation from the victim and the state to continue the trial date to question the defense admits that merely by asking the victim by merely asking to make a police report put her statement in the area demonio what's your position with well your honor i'm not sure that the victim asked to make a police report i can't say to the record on that point but you know she was she was encouraged by the woman that has the house to make a nine hundred and eleven call and my answer to that is that the big times did make statements to officer collins and those were the more lies in writing and those were found to be text monye all and those were not you know admitted for the purpose of the contents of the victim the fair that that the witnesses will quiet that does not necessarily make it an excited psyche she was still she had just walked up to hastert house it was the st opportunity she had to speak to anyone and she spoke to one saki and she could not even you know sit down or speak in full sentences victim spoke to that she went and then she spoke to and i want to operate or and then she spoke to the officers i just was simply trying to point out that even at that the later point when she spoke to the officer she was still crying there for excitement you know she was still you know producing spontaneous statements based on the fact that her you know based on her emotional state and this this was even true so the if this was true which is big enough as their college it was certainly obtain the victim's attendance by process or by other reasonable means again you know subpoenaing a victim in a domestic violence case it's not you know it's not unusual that they do not want to d and it was clear it's clear in the record that the state was informed that the the victim would not be cooperating and therefore that is what the statute requires is the need to to obtain her attendance by process or by subpoena and that is what the state is or prior to do thank you argue that's not reasonable i don't know that the state should be should be compelling domestic violence victims to appear in court against their cues or any and that's the whole purpose of the statute what the statute here means is that the word or isn't there is that process isn't even required you know if the if the state could seek the victim's attendance by other reasonable means there are alternatives to process however the fact that the victim the fact that the state subpoenaed the victim to appear in court by the statute is in fact establishes unavailable a witness has never crossed my path before this case and i find it intriguing and apparently based upon your argument there is an era b presumption domestic violence victims do not wish to testify and if that is an arab audible presumption then it would seem that that presumption has been impeached if in fact there are cases where a victim doesn't fact appear and testify so if there is this contradiction in so far as reality and what appears to be legislative policy oh why should we presume or conclude that simply process or simply subpoena witness without some sort of investigation by the state to point out that we've checked local hospitals or we had a phone call and her phone is dead whatever why isn't there something a little bit more than just we've subpoenaed her the when the people sought to continue the trail day and filed the motion and december th the people stated that the state had made attempts to reach that the victim in this case and of those times had not been answered the state was recently informed as to the victim's uncooperativeness to prosecute the case and i'm reading from page thirty nine of the common law record in the people's motion so  you know the statute contemplates that some victims are not going to appear and as i've argued that is that is often the case of domestic violence situations so my argument is that the court was free and and this court has the evidence before it to find that the victim was in fact unavailable and what about i'm sorry your honor i don't and could could you explain more yes if we determine that some or all of this hearsay is inadmissible is or has jeopardy attached and the defense the convincing should be an outright reversal or should be remanded for trial a new trial i believe that the defendant is simply asking for a new trial i think and i think that even where there's improperly admitted as evidence that could be considered i'm not sure that answers your question well let's put it another way if we find that all the hearsay testimony should have been excluded is there any evidence other than here to hearsay testimony that would estab state they witness numerous red marks on the victim's body those marks were photographed the officer an officer then went to speak the defendant defendant said he was angry with the victim  d the people would argue that that evidence would be sufficient to to support his conviction however we had multiple statements here and any one of which would support defendant conviction and as  argued all of those statements were properly admitted under hearsay exception and they did not violate the defendant's confrontation clause right i have no further questions are there any question was upset but the purpose of this excited utterance exception is statements that are startling and unreflective and when melissa schol had the opportunity to reflect on her statements victim of a crime called her fiance talk with her fiance and then immediately after called the police that happened in a short period of time as well put because she had a chance to reflect on her statements her later statements to the police  were were no longer unreflective and in addition the state talks about the finding that a startling occurrence occurred however disserve court as seen on page ninety two of the record called to what the court said the startling occurrence even was it was therefore unreasonable for the circuit court to find that disqualified under the excited utterance exception moving on to section ten  legislature and if this is read as a disjunctive then it would always leave just merely a subpoena as being sufficient to then and met hearsay testimony it it's not unreasonable to ask the proponent of a hearsay statement to do more and the authority that i cite actually comes from the statute itself where it says process or other reasonable means the statute is asking more of the proponent of hearsay to to be admitted and that is a reasonable thing to ask of someone seeking to admit hearsay and as to whether the statements were reliable the state has argued that these statements were made shortly after the incident but based on the record we don't know if that's true as i've said there were ten hours in between when shoal left coun house it's possible that there was an injury at any time between those two periods of time and then moving on to the zero and then excuse me one more its part reliability that is the state brings up the statement to officer collins however that was not admitted at the trial and that should not be used by this court as further evidence of reliability of the statements made by melissa shoal and then to move on to the confrontation clause this statements made to the ninety one operator were made for the primary purpose of making  report for later later criminal prosecutions i've argued that there are objective circumstances that show this but by comparison we know that melissa's soul had been picked up by someone who drove her to well if she had asked to be driven to a police station and made the report there it would have been a very similar report and i think would have been testimonial in that circumstance just because she made the call over the phone does not mean that the primary purpose all of a sudden become seeking medical attention melissa's so said she did not want medical attention at multiple points and told the operator earlier on in the call that she just wanted to make a report and then finally to talk about harrington being hemmings and being a representative of law enforcement i do contend that she worked in concert with the police she called nine hundred and eleven she talked to the operator she brought most social to a place of safety and continued asking her questions  so i do think this court could find that parents it was a representative of law enforcement and that's a harmless error i think without these statements there's simply not enough to say that there is a connection between mr bush and shoulder injuries so on to why the victim was in there no your honor at the beginning of trial it was noted that most the show wasn't there and the state had and inform the court that it intended to the statutory hearsay exception but there's no indication of the record that they had called has that house or look to see if she was anywhere in the courthouse so that the record is does not reflect that void of that yes ok and you indicate that the statute says process for reasonable means it does not say process a and reasonable means it says or yes correct  circumstances and right at that point you're correct but how is it i am here at the post or well because if if it is only read as deep disjunctive then the entire phrase or other reasonable means becomes superfluities and meaningless every witness is is pino and suddenly there's this other phrase or other reasonable means that must mean something in the context of the statute but there's nothing to suggest that that it would be allowable for for a person to do that mitt hearsay statements because they called up the witness and said hey are you going to come to trial on the witness said no so proceed with your fate pap to money for several reasons with the intent of the legislature number one is it's not unusual for victims of domestic battery who stay in domesticity relationships cannot come  testify for several reasons and number two to try to you know put an end to domestic battery why is why if in to your intent of the statutes under the previously argued if this was the case where melissa szell had stable housing and they had dropped the subpoena off and they knew she had it it wouldn't be reasonable to simply say that when they found out she was uncooperative that they wouldn't take any other reasonable means to try to preserve her attendance and this statute asked for those reasons means to be able to admit hearsay testimony and i think in the context of this case where one of the state asked for a continuance they had known that melissa still received a subpoena and they had known she was uncooperative it was unreasonable unreasonable at that point to simply say well we have other witnesses now and we'll just bring them in instead and so i think that that's really the the way that this should be looked at here