court counsel my name is christopher mccoy from the office of the state appellate defender and i represent mr lorenzo can't your honors we raised several issues on appeal there are two that i would like to focus on with my time right now st the sufficiency of the evidence and nd the an availability of wesley johnson regarding the sufficiency of the evidence we acknowledge that we raised a similar issue in mr kent's st appeal and we acknowledge that this court rejected that argument however that fact is not the feet the argument we are raising today for the simple reason that the state's evidence at the nd trial was weaker than its evidence at the st trial and what's more the evidence of the st trial itself was far from overwhelming perhaps the best indication of this is regarding the other issue we raised in our st appeal  regarding the facebook evidence in response to that argument the state did not claim harmless they are they never argued that the evidence at the st trial was overwhelming as this court will know is harmless error is a staple and the appellate prosecutor's play book the fact that the state didn't even attempt to make that argument shows just how close the evidence was at the st trial yet as i said the state's evidence was even weaker at the nd trial unlike the st trial there was no facebook evidence there were no phone records and both of these pieces of evidence in their own ways physically corroborated the state's witnesses so the nd trial even more so than the st really came down to a question of the jury having to believe with the state's two main witnesses genesis burrell and wesley johnson having to believe their testimony yet there were more reasons at the nd trial to not believe their testimony perhaps the best example of this comes from denise gregory she testified that she did not see she was sitting on the front porch at the time of the shooting and she testified at the nd trial that no one walked in front of the house at the time of the shooting of course this contradicts wesley johnson's testimony as he said that that's exactly what he did and what's interesting for purposes of this argument is that denise went from at the st trial to contradicting him at the nd trial now besides these changes between the st and nd trials there's just also an underlying unbelievability to what these two  states witnesses their main witnesses were testifying to wesley testified to seeing things that according to other states witnesses were impossible for him to see both based on the darkness and the physical layout of the house wesley was also contradicted by genesis who said that he was at home with her when the shooting occurred so there's a situation here where both of the state's two main witnesses simply cannot both be believed turning to genesis her story too was simply unbelievable she testified that she helped a man whom she literally had just met in his efforts to murder someone else when this man offered her nothing for help when this man did not threaten her and yet she never told an adult about this for the that entire day even when she hears gunshots in the neighborhood she never tells an adult about what happened and tell the next day and when she st tell someone she's in the back of a squad car being picked up for a runaway and even then it's the police officer not genesis who brings up the shooting  once genesis starts talking her story then constantly changes from her statement to the police officers to the grand jury to the st trial and then again at the nd trial and these aren't just minor details major elements of her stor either omitted or changed significantly in these various retellings and then on top of all of this on believability of the state's witnesses there was evidence of a possible cause for the shooting that was unrelated to mr kent and that is the drug dealing that was occurring from the victim's home there was drugs and paraphernalia found by the police in the back yard and the next door neighbor saw people going through the victim's pockets after the shooting now all of this is to say that we acknowledge witness credibility is generally left to the province of the jury but because these witnesses were so one believe mobile this is one of the rare cases where no reasonable fact finder could find mr kent guilty beyond a reasonable doubt therefore this court should reverse his convictions outright if this court does not do so it's still serving man the case for a new trial based on the multiple trial lawyers that we've focused on in our brief today i'd like to just highlight one of those and that being the on availability of wesley johnson the trial court erred in finding wesley to be unavailable for two reasons st to show on availability the state must present evidence via either a testimony or an affidavit neither one of these occurred here the prosecutor just made a statement giving sort of a vague outline of what investigators had done to try to locate wesley interestingly the state and its brief does not acknowledge this requirement of affidavit or testimony let alone say how it was met so alternately this court doesn't have to address the due diligence of the state's efforts because the state didn't even meet this threshold requirement and the nd reason the court erred was even if there was no requirement for an affidavit or testimony the state still didn't show that it made reasonable efforts to locate westley on availability is a narrow concept subject to rigorous standards and the state just didn't meet standards here all the state did to find wesley was to talk to his father they didn't search official databases they didn't look to see if he was going to school or had a job they didn't talk to other people in the community to find out where he hangs out at they didn't search for him on social media they didn't even do something as simple as try to find his phone number and call him and then the state didn't even check its own records to see that wesley had an active criminal case in the same county despite being the only eyewitness to a murder the prosecution didn't ask for a single continuance to get wesley into court and then as i said before the state didn't present affidavit or testimony what they did was make a proffer but that proffer itself occurred at a motion in limine a hearing a week before trial and there was just no evidence ever presented what happened in the week between this pretrial hearing and trial in terms of the state's efforts to locate where there has been simply put no case in illinois where a witness has been found to be unavailable despite that with the state doing so little a difficult parent shouldn't be an impossible star hurdle for the state to overcome obstructing service a process is a criminal offense and you know it it seems like that wesley was living inside this house so perhaps arresting his father for obstructing service a process or even threatening to do so that might have been enough to get wesley to come to the door but we have no evidence the state ever tried that finding on availability here what essentially allowed the state in future cases to choose to rely on prior testimony just because a witness becomes difficult and of course the result at this trial was that the jury didn't get to see wesley they didn't get to evaluate his demeanor which was especially important given how suspect his testimony was and therefore the court erred in admitting wesley's prior testimony and given the closeness of the evidence which i discussed before this this error warranted a new trial in conclusion mr kent respectfully request that this court reverse his conviction outright or alternatively his case for a new trial thank you thank you just this jorgenson do you have any questions here mr mccloy i mean isn't the state really here between a rock it between a rock and a hard place what else can they if they can't find wesley well they they're with i mean several options if you know sort of off the top of the head of what they could have tried to do we know that they didn't do those things or do we just have to rely on what wasn't said in the proffer yes essentially and that the burden is on the state to prove its efforts and again that you know they didn't present the evidence in the correct forum but but even then you know what what they said they did was talk to wesley father multiple times so you know it's possible that only twice they went to the house and and tried to talk to his father i mean they never you know i listed some other possible options that they could have done but the burden is on the state and the state's proffer here was insufficient to to meet the rigorous standards of on availability you  excuse that since the trial court seemed to suggest to the state that it would it being the trial court would be happy with a proffer they could in other words they did the trial court excuse the state's obligation here i don't believe so i mean the court seems to be under a few misimpressions in this case in terms of what the the state needed to present and then sort of how much evidence they needed to present to to make a showing of an availability so the fact that you know the judge is wrong i don't believe that that you know state throws that up there the judge just doesn't say anything but neither does the defense you don't object you don't see a judge we want a proffer is there any argument that as it relates to that question the sufficiency or how the evidence in support of the proffer that you forfeited better no i don't believe so i would note that the state has not argued forfeiture regarding this on availability argument at all so so they have forfeited forfeiture you know if if they had to raise something in it in their brief we could have responded in some way  again it's you know it's not like the state didn't know about this requirement and as you said they are the ones who bring up an affidavit or testimony and they just it sort of dropped the ball  on coke coming going through with that so they were away or at least it appears they were aware of what they need to do and just failed to do that if you think there is anything argument there if we agree as i said is the only eyewitness to a st degree murder he that the state's evidence is very suspect to that obviously to the point where arguing it wasn't even sufficient to sustain the conviction so if this  challenging the sufficiency of the evidence really urge at this court to compare the evidence at the to try to us or there's no citation no authority that really merits any such comparison look at the evidence presented to this trial on does overwhelmingly oh wilson the mother of the victim's children was present at the fight egging defendant on police responded to that fight nor fight the c f s because the victim's children were present at the fight and then the day after the fight d c s took the victim's kids into protective custody from house but the day after that occurred the defendant is in the park near the victim's house upset about his kids being taken in a reasonable inference to make is that he's referring to compete goes west and says his own kids and genesis  testimony through a hood in a fictitious him in the park he's there shortly when it's dark shortly before the shooting occurs and it and all that road it involves none of wesley johnson proper the trial court accepted the offer of the people's proffer of their efforts to try to serve wesley johnson and what's required is whether the efforts were reasonable and done a good face on the defen side the case was told or any argument about that the trial that the state should have proffered more additional evidence as to what their at specific efforts were required was sort of short circuited because the trial court intimated  therefore any additional argument or proffer of anything else was really short circuited by the agreement of the two parties as to what had occurred on the prior dates and distaste the efforts of the people were met with active hostile resistance that was proffered to the court and short of could something more have been done in any case they could camp out outside of his residence but there's always something more that could be done just the question here is whether was an abuse of discretion to find out what the state did was reasonable and i simply don't involving wisely johnson i heard that they did not try to check the corner or other other reasonable places that they would normally normally check front to bill ability and so in this case the states admits that i did state engage in reasonable good faith  you you dropped out for about a minute so could you repeat repeat what you said in the last minute approximately can you hear me now is this better simply  given the time constraints i will rest on the arguments that i put in my brief regarding wesley johnson's bill ability i don't believe the trial court abused its discretion in finding what the state did was reasonable and therefore i'll rest on that argument the proper thing that was given at the trial was that the investigators made contact with the family of mr johnson more than once that his father had been very hostile that their belief attempts of service for w three they refused to inform the investigators of where he is in that they did believe that reason to believe that mr johnson did tend to be with the family that there were attempts to serve people about but they wouldn't answer the door and tell me why that reasonable answers given that we start with the right to confront all staying there overnight to try to get him when he goes in and out making multiple attempts to search someone out there just can't be considered reasonable i did was done so by the but they made multiple attempts at service was there any additional efforts made in the last week prior to the trial nothing was proper and that was after he had been found  your honour's one point regarding the reasonable doubt argument counsel says we're comparing the case but when the st and nd trial and the reason we're doing that is in response to the state's argument that they raised in our brief in their brief excuse me that was because this court rejected a similar argument on the st appeal that they should reject the same argument here and it was just our argument is showing that that's not  the ruling in the st appeal it's not dispositive on this appeal turning to on availability again i would like to reiterate that any argument regarding the affidavit or testimony has been forfeited by the state because they did not raise this in their brief they never once responded to our argument about that requirement and without sworn testimony and affidavit again we're just left with this very nebulous statement from the prosecutor we don't know exactly how many times the state went to wesley's house we don't know when those occurred we don't know what was said between the family or the father and the police officers or whoever was serving the subpoena there's no paperwork on these unserved subpoena and we don't really know exactly how the fan family or the father was avoiding service as the prosecutor said and again the state never once asked for a continuance they never really tried anything except talking to the father twice i mean that that's sort of the end and the beginning of their of the state's proffer and you know  it's just an unreasonable to think that there was no other possible way to attempt to contact leslie obviously this was in pre cove it pre quarantine time so it's doubtful that wesley was bunkered down in his house and no way for anyone to contact him and then my final point is this regarding harmless error to the state's arguments that the wesley testimony was an important i mean there's a disconnect between that argument and the argument counsel just made regarding reasonable doubt and which counsel just highlighted wesley's testimony as one of the reasons to affirm mr conviction and look at the state's closing again mr kant would ask that this court either reverse his conviction outright or remand the case for a new trial thank you presumably under old as the st district determined in their case well it's i mean this is backed up by case law is it it's not as if it's not in the exact language of the rule but in the hanssen case that was found also on the th district has found that in multiple cases the duke's case and the current block builders case both of which were cited in our brief so this has been other courts have have found those requirements or it were asking this court to to follow the existing case law and in fact i would just point the these aren't controlling cases but persuasive cases from arizona iowa and hawaii that we cite in our in our opening brief as well for the support that just a a prosecutor or a prosecutor statement is insufficient to to prove an availability as an exception to the confrontation clause it's all i had thank you thank you justice brennan you have any questions i do not thank you mr mccoy was defense counsel ever asked by either the prosecutor or the judge if the representation by the prosecutor were sufficient and that the defense counsel had no objection if the representation satisfied the requirement relative to testimony or affidavits no that question was never asked to defense counsel thank you i have no further questions any other further questions no sir thank you you know thank i'm sorry my phone just in any event we'll take the case under advisement and we will render a disposition and naptime thank you mr clerk you may close the proceedings