morning your honour's council this morning i'd like to address primarily issue two and then if there's time briefly go to issue one and of course i'm open to any questions you have i would like to take  no more than ten minutes so i can have at least my five minutes for a bottle issue two was that the trial court denied bailey a fair trial by mischaracterizing significant evidence  i'm focusing in my argument today how that mischaracterization resulted in rejecting david service as a credible defense witness this case is all about the details there's lots of evidence here a lot of testimony about about her mrs wilson's medical condition though i have details about david services knowledge as a family member of variables and condition he had frequent contact with her and if you contrast that to the state's evidence they their evidence about her condition is pretty much limited to today's hospitalization mail for housefull station and may may two thousand six it's david services testimony that's crucial here it fills in the gaps and it's crucial to the defense just all of the underlying question that we're talking about here is this woman's mental financial decisions first of all he didn't give any timeframe on that is he talking about in two thousand and four and he even might even barely remember this person he first said why didn't think she was demented they refer to her nurse's note so these doctors are going by their notes and they then she's doing their job but her job is denying the defense a fair trial a woman isn't present for eleven years we have a defense witness who says i've known mrs wilson all these years she could here in the q and now you know maybe some people here different him not to this point well i david service indicated one point it's just noise that there was a nurse there there was an extensive testimony about that a caseworker came in and he said in the days that he visited that there weren't unsanitary conditions he said she even initiated a conversation in the hospital in may you know six when she's severely demented that at that point so i don't think we're going to we can find that the guilt was proven by a reasonable doubt based on one witness's testimony that at a certain day that conditions were unsanitary the the issue is whether a person with a condition that can be that's not necessarily progressive linear you can have good days and bad days you go in and out it's a slowly progressing condition if  and thoroughly i don't see how i've been trying hard to see what your argument is as to how the court that night the evidence and testimony was not denial here's the reasons why i'm not finding credible i have no argument if she is basing her credibility assessment on a correct recollection of the evidence but for example i think a very significant it's not getting well if i can go back and address your question about the cousin mrs williams if you her testimony is very confused at one point she doesn't even know what year she spoke to her on the phone and i'm not i'm not taking the position standard or view is is de novo as to the limited issue as to whether the trial court denied bailey a fair trial by miss recollecting ravitz either the evidence is incorrect or not and on that limited issue i'm not i'm not i'm not arguing that she made an error in i wouldn't be arguing that she thought she'd made an error in assessing the credibility of david service if she gotten her facts right but she said these are the reasons why i'm not finding incredible a person would have difficulty communicating in all instances that's not correct she said wilson davi father her his father was not dead and he said that he treated wilson as his mother there's a lot of confusion here she said i don't believe that he's shown any evidence of receipts well that's not true a defense eggs exhibit was an invoice mark paid i think at some point it gets ridiculous if there are so many errors and then you're basing your rejection of the whole the the defense witness who in some ways consistent with the medical testimony is saying she could speak she could communicate i don't believe the medical testimony was that she could never speak at any point in that time period the the argument issue two that the bail was denied a fair trial because the court made so many errors i mean we have to have a fair assessment based on the evidence that's presented you're  or well i think if if she misunderstood the law of hearsay that's a legal question review de novo but that those are two i mean they're related i but i mean there but they are separate issues number one it is very clear the protests me very well correct don't like the fact the trial court made that assessment based on numerous errors it was a question of her like who are who i believe what we need to give his testimony the question was  whether it was true that the doctor said that david's for example david services testimony that she could talk with directly contradicted by the medical testimony that's not true so it's  effect i mean if there's if there are so many mistakes and you're fighting this guy incredible for the wrong reasons we can't put any faith in her determination of whether she's credible or not and s as well that that example of the context of that examination was how did how is a car paid for so i don't think though that was a stretch and if she can decide who to car and then the the point is that we want the defense is denied the opportunity to present the actual words of mrs wilson that's more powerful than a statement that she gave me the money i mean the defense was untied this is serious serious allegations the woman has been for eleven years the defense was entitled to a fair assessment based on what was actually presented at the trial  of the people the state of illinois the evidence a trial clearly established that over the course of nine months defendant wiped out the life savings of marion wilson of over three hundred thousand dollars the defendant  portions of the evidence has been forfeited by plane air there was no objection a trial to the trial court's findings and there was no post trial motion raising these issues in order to preserve this claim defendant must show that either the air was so serious that it affected the fundamental fairness of the trial or that the evidence was closely balance dependent has failed to meet either of the prongs set forth and here and in order to preserve this claim for review again this is just a it's a prevention of the claim from being but it does not prevent the court from reaching the merits of the issue the standard of the review is an abuse of discretion whether the trial court abused its discretion in its determination that david service is credible excuse me the david services testimony was not credibility determination by now again asking us to review the testimony of david service against the testimony of our not of williams and the medical doctors the trial court had testimony that miss wilson strokes had damaged her brain all the way back in two thousand and four and there was specific testimony that wilson had hand tremors needed special feeding utensils and he had to say jo all independents ascribed errors in the testimony of in the excuse me recollection of david services testimony were all reasonable inferences made by the trier of fact the trial court the credibility determination is solely the province of the trial court and the defendant is asking this court to substitute its judgment on a credibility ignore all of the other evidence in the case and to rely solely on selected excerpts of the trial court's findings david service was not credible where he made himself a witness to the fraudulent power of attorney document the testimony at trial established at the forms were purchased in two thousand and six and service testified that he was there when marion wilson signed them in two thousand and four in her brief dependent cites to the cases of bowie and mitchell both of which have that the trial judge did not cases the trial judge said that consider the defense theory that was presented at trial in this case the theory that was presented at trial was that marion wilson was able to consent to these purchases and the trial court clearly consider that testimony and clearly found it to be non credible based on the medical story based on the testimony of our not a williams and also based on the full luminous financial records that were supplied a trial that showed that over three hundred thousand dollars disappeared in the course of nine months if there are no further questions than i ask that you affirm the defendant's conviction and sentence for these reasons and all those stated in our brief thank you if in every case with the the the conclusion would be well the trial court you know did its job sometimes the trial court makes mistakes and doing its job and she for she rejected david silverstein only the only rest of her family and then over a period of nine months her entire life savings they've left them one thousand dollars disappears and the beneficiary of some of that would think that could be many situations where suspicious circumstances of a loved one authorize somebody else to the family to to spend their money we don't we don't approve offenses based on the mere amounts of money then david service was part of this family had known this is wilson since he was a child so that itself is not really thought he was part of and i mean her but she gave a she gave numerous reasons why don't i don't believe him and they weren't based on accurate recollection of what he said and in some cases what what the state's evidence was so she this is paley's entitled to a fair trial based on an a so of credibility with no it you know no errors and this is not what happened i mean it's is outrageous just on and on and