before district public court of the state of illinois has now convened the honorable james a connex presiding on the conduct issue and then if we have time i would like to discuss the rd and th issues which both come to down to matters of ineffective assistance of trial counsel they're in a stand alone claim or a did consent to engaging in oral sex the prosecutor repeatedly said that she had testified that she said no but no evidence was actually entered is that that entire defense because it was never actually played for the jury only the very beginning portion that demonstrated that the victim was laughing when she was initially speaking with the police officer was played the rest of it was not played in fact did contact me earlier this week and told me that he would be addressing the williams decision that this court recently released and it was in the brief but he's informed me that he intends to do that  in terms of williams i don't think it really even comes into play in this case because we're not talking about a type of prosecutorial misconduct in which there wasn't an intention you know no action the prosecutor the state ar trial lying in the sun and this matters not just for the armed violence conviction it also matters for the armed additional invention because it really comes down counts and motive as far as credibility so as i argued in the opening brief if the jury was convinced by the prosecutor's arguments that this sort of sexual assault did occur then that and this is particularly important here where the victim did have a reason to lie about who had possessed the gun because she herself was a convicted felon and that brings me to the other two issues in this case that deal with  the prejudice of the offenses coming into trial and you know he's even entered into stipulation so that the jurors would only know that the defendant had a prior felony conviction not the details of what those were and then similarly in fiel the prejudice was mitigated because the the the six nature of the felonies that case were not really tied to the charges that were on trial there so you didn't have prejudice so in because he also didn't just stipulate oh he has five prior to all the convictions or oh he has these specific prior felony convictions instead counsel stipulated that mr thornton is a bitch i'm a criminal the of the fact that the jury is told he's a habitual criminal in this case that comes down to credibility contests with during never never had a chance to consider mr going to be a credible witness or even innocent and that brings me to the th issue in this case the critical issue that brings up some evidence that may very well have proven mr  making false allegations of sexual assault and how counsel who knew about these witnesses but never interviewed either one of them because trial counsel misunderstood the rules of professional conduct and thought that there were precluded from doing so simply because these people were represented by a public defender on a completely unrelated case that's not the law that's not public for the rule of professional conduct for point he yes yes i have i was a trial attorney in the ozarks for three years and excellent if i go to a defendant's lawyer and say listen i want to talk to your client about drug use in a case i've got and the lawyer says i don't want you talking to my client so you show up at the jail and the one of the st things are going to ask you is do you represent this guy they know but i've talked to his lawyer and i need to talk to ron did his lawyer tell you that that you can talk to a well known fact his creative we're talking about the practicalities of getting in to see somebody else's client who is currently pending charges when you know that his lawyer has told you i don't want to talk to my c because i don't want him talking about drug use when he's got these other pending trees so i'm trying to figure out just mechanically how you think you're even going to get him to spe to the mechanics of what jail is going to let you in and i don't i'm not sure where you came from but here where i'm for i'm not going to get in the door and up to the visiting room you in to talk to somebody else's crime especially when you have to when you when they ask you because one of the st question is going to be did you talk to his lawyer well yeah i did he says i i know he doesn't want me to talk to  to read that in your brief i was just stunned because i thought ok perhaps this is someone who really has a private criminal defense work for now hearing that you have all i can assume is they do things dramatically differently in there because there's no jail around here it's going and i've been doing this i was i was a criminal lawyer the prosecutor defense for twenty five years before subject in years gone there is no jail that is going to let you in to talk to aid the incarcerated defense when your not the lawyer and you have to explain answer the question did you talk to the lawyer and they tell you maybe not and this is a fantasy i'm just don't do this is a fantasy argument that you are making i have i'm not criticizing the other argument i'm just telling you this particular part of your argument fanta is all the time you might want to spend the rest of your time on something that's going to maybe make a difference because this one is not with me i respectfully disagree your honor i believe that intimidation statute i think that since that's the way that it was charged but yes the state should be held to that burden because of what you know mr thornton preparing defense based on but i think reasonable people could argue that it would have been enough if the state had the presented evidence of some other form of intimidation based on trying to obtain the same result in this case the that he did so to get her to do something against her will let me ask you this question is there any problem with the one where one crime can you hear me yes intimidation and it's not a justice turner was talking about that wasn't specifically charged in this case he wasn't found guilty a bit every was just an element of the armed violence i would i mean again that the there would be an extra element of putting that on firearm in that context which would not be not be  exist we wouldn't be required for the intimidation or the armed violence charge i don't know that to me it just seems like it could be a problem but maybe not maybe  didn't contest that he didn't point the gun at f n his point his defense theory was that and was making all of this so it even if we presume a problem in the charging instrument depending clearly was not argued that he brought the gun out placed it next to his penis and there's evidence of s n stating that he cocked the gun and that evidence of his demeanor completely changing at the time that the gun was revealed so that is especially when looking at the seven this the light most favorable to the prosecution that satisfies the elements by violence specifically i want to talk about that video page three hundred and twenty four of the record council stated that going to start the video this is the video of the police officer questioning at and then the back of the car he says he's going to start the video ten hours seven minutes forty two seconds f n stated that she said no to defend his request for for oral sex less than one minute after that this is important because counsel's questions to the police officer directly after this were about contents of the video way after s and stated this no  on again starting on page three hundred and twenty four defense counsel says as part of your investigation you got a statement from her asked her what happened correct correct as part of that ms nesby told you what happened up to the point the police arrived correct and she told you that after she locked out mr thornton she called her brother and she correct she didn't say anything about calling her cousin no she told me she called her brother this conversation about whether she called her brother cousin she testified she called her cousin in the place car she stated that she called her brother this part of the video was way after she had already narrated what defendant did with the gun and that she stated no this was there's no way to presume that defendant the defense counsel only play like the st few seconds of this video when the content of the questioning concerned parts of the video way after she stated no so there was evidence presented that she stated no and of course defen on that the term prosecutorial makes misconduct should not be used and situations like this where of course there was no error here but say the prosecutor does fail to recollect exactly how witness testifies in this closing argument are inadvertent mistakes that happened at the speed of trial there doesn't not called you those are not called judicial misconduct when the trial court fails to edm it a something that's hearsay or another evidentiary error that's all judicial error it's not called attorney misconduct when a defense counsel fails to interview witnesses or whatever is called ineffective assistance of counsel the term misconduct in the way it's commonly used suggests intentional or willful malice which is why it was used in the basically in the grand jury intentional  misconduct in the grand jury perspective for so long that another again i think still justice tuchman was correct where he mentioned brady or bats and violations as something that could evidence and in closing argument again here this doesn't really apply because as i stated there's nothing there's no way to rebut the presumption that this video was played at least for less than a minute  starting on page three hundred and twenty four of the record based on defense counsel's questions and this makes complete sense because again defense counsel this was never a point of contention at trial but at the end was telling the truth but she just didn't sufficiently convey her objection to defend its request for oral sex this was not the point this was not the defense theory at trial so it makes sense that counsel wanted to point out that the defense theory with the death and was completely making all of this up to cover based on f n's and consistency even her trial testimony but it does not maintain a part of the video where she says no was not played before the jury and of course the prosecutor was allowed to comment on that  for counsel to go to these great lengths to try to interview these witnesses mainly because even if they were going to testify exactly as defendant alleged there's zero relevance to what they were going to testify to they were going to testify that they smoked crack with at and the day of or right before this incident happened they were going to testify that they used drugs with at in months or even years in the past this is completely irrelevant and not only that if we  assume the hypothetical the at the very least even if he did discuss this with these and attempted to get these people to testify their counsel is going on by them not to testify not to incriminate  themselves to to damage their prior to damage their pending charges so even if we take it that they somehow made that castle somehow made contact with these witnesses there's absolutely no way they were going to trial and even if they somehow were out potential witnesses the trial court would ban it based on relevance anyway so but the point of that is that it was not manifest error for the trial court to assume sound that's what the motion to sever this court stated in houla cited in my brief that the defense decision not to seek a severance although it may prove been wise in hindsight is regarded as a matter of trust or outage of course matters a trial strategy can so i can't support the and effective assistance argument and i think that the ugly decision was a decision takes that presumption and throws it out when i don't i think it was wrongly decided although in this case we do have evidence based on counsel's maneuvers that this was a strategic decision this wasn't him simply neglecting to consider severing these charges he fell out what was an all or nothing strategy had their stay in this makes sense if they are and that was that was the plan and this was shown in the motion in limine and the stipulation that the prosecutor and defense counsel stated that he would only be called he would only be a criminal they discussed the dog they discussed the l elements of armed habitual criminal and closing arguments so the jury was well aware that this was not a tar this was a legal term this was not just they weren't just cause they didn't call defendant a bad guy they worked they were saying this was a legal term this was a legal sense that defendant was guilty and they didn't go into the specific offenses underlying offenses and i think that was reasonable trial strategy again of course that specific argument was not made this was more motion to seek a separate it's not just the the terminology used in this specific case is should not defendant fails to overcome the presumption that this was a matter of trial strategy an all or nothing matter trial strategy based on athens incredibility of her trial testimony in her inconsistency between the two stories she alleges so this was not that at least the defendant has failed to overcome that presumption this was a matter of trial strategy and therefore there was no ineffective assistance of counsel again based on the the choir just a couple of very quick if he is already touched on something mr mcneill discussed with regards to whether the video of the offense pretrial statement was actually played  well that's uses the word know which could be construed to mean you're not going to drag me back into the living room or the better whatever it was or it could be you know i'm not going to do what you want to do that a instigate the sexual activity removing the piece of clothing from his general area and revealing because of all she says some suggestive things to him she says the goal at that point clearly just if things are sexual activities when she says yes that's the inference you raise in your brief this bizarre argument that maybe this was some sort of a fetish or something for you that's apparently a more reasonable of physical violence against her to try to force her to do something against her will again there's no evidence that she said no to the oral sex she comes back she realises she had sexual activity by removing all  you also stand here and claim that this victim has reinitiated sexual contact in the testimony that is presented in the transcript that's as much of  misrepresentation is what you allege against the prosecutor in removed the article of clothing that was covering his genitals but he didn't have to hide it but she's already hershey since you don't have to hide i've already seen it then she removes the shirt and realizes that he's sitting her holding a gun that's when she tries to get away from and then when he grabs her by the neck she screams no no no that's not really initiating sexual contact i guess i just find it somewhat interesting  alleged misconduct on the part of the prosecutor in the nature of his argue and yet you misrepresent to his judge just to significant degree what the evidence was in your art is that misconduct