morning your honour's lease the court my name is christopher mccoy from the office of the state a public defender and i represent the appellant there in denson the issue presented in this case involves two sub parts the first being whether the issue was preserved for appeal and the second being the actual substantive hearsay argument bring first to the forfeiture question here the state filed a six page motion eliminated along with over four hundred pages of exhibits seeking to admit several coconspirator statements the defense filed a written response objecting to this motion argued against it at a pretrial hearing and motion in its briefs this state has conceded that this distinction should not be followed instead the state now argues that without a trial objection a motion eliminate does not preserve an issue for  initially this conflicts with this court's holdings in people be hudson he will be the poker player and people he cocks well the state attempts to say that this court's criminal law precedent is deeply split on this issue the state does so by citing cases such as people beat a knock in which there was no motion in limine filed so in cases such as that where where there is no motion limaye then obviously a trial objection is required however that's not the case that we have before us here in fact the this court and he will be huts incited not thus showing that there is no conflict between those two lines of cas in fact in all criminal law decisions from this court where a motion eliminate has been filed and a that issue included in the post or a motion the issue has been held to be preserved furthermore there's no reason to the park from this precedent as all of the purposes of the fulford forfeiture rule are satisfied by emotion eliminate even without a trial objection forfeiture is designed to do several things first and foremost to give the trial judge the opportunity to hear that issue and then later to reconsider its decision or future also allows the appellate courts to understand the basis of the party's objection as well as understanding the trial forfeiture prevents open ended deals instead it live is this two issues that were considered important by the parties in the court of law and in this case the motion eliminates satisfied all of those purpose the judge said quote at each juncture of this case was pending these issues arose and the court afforded a great deal of time in arguments and case law was present i gave it a great deal of thought at each and every motion hearing as i have considered what you have said today in fact the state in its brief says that this was a this issue was fully and fairly litigated in the motion and eliminate here finally this was not a case where the defense was sitting idly by as i said earlier the defense objected three times in the trial court to this particular evidence and it cannot be said that the state was surprised that this is an issue as it because they were the party that initially brought brought this issue to the forefront so with the motion eliminate we have all the purposes of forfeits rule are satisfied even without a objection to better reasoned arguments and decisions when you have a motion in limine a if you have a written argument and an oral arguments as opposed to just a trial objection where you only have the oral arguments additionally the trial when you have a trial objection the jury is either sitting in the same room waiting for the trial to continue or in the next room and that the time factor starts weighing in where is supposed with the motion some assumed facts which counsel says or make come into evidence and doesn't come in yes in that case you would need it right then if if if the evidence had if the evidence presented trial was different than what the parties insist it before trial but certainly that's that's not the case we have here this state is pointed to nothing different that has that has changed here in in fact so you're not every creating a rule that says you never have to object  no no and yes in here when when the facts don't change the entire impetus of the trial objection the sort basically asking the trial judge to reconsider just to change his mind for no reason at all because it's the same evidence that was considered before trial you were are you also saying that that if if the evidence changed in some way then the attorney would need to to object again or or else all that would be preserved would be what was litigated pretr for the states or middle school was that if you have this change in circumstances and no objection made a trial attorney could let the objection doors a basis or fail to make an objection perhaps each case is going to have to look at whether or not that was the same issue but that's i mean that's the same is true in every case even if it's a trial objection so basically our our position was that this court you continue to follow the it's established precedent in criminal cases so it makes would make no difference whether it's the state's motion on many or the defense motion exactly exactly and if  you look really all that would change between the two would be that the title of the motion the contents of the actual written motion and the pretrial hearing would be the same they're taking this case an example there's simply would be no difference if the defense had title is motion defense motion and lemonade versus response to sta pretrial as the assistant state's attorneys said with a jury trial here i wanted to make sure that this was all out there beforehand and that when we tried to get in one of those coconspirators statements there wasn't an objection and we had to send the jury out for an hour while we argued this so obviously motions in limine a as the state recognizes in the trial court here are not just for criminal defendants their victim advantageous for all parties involved and this event is would be lost if the parties were required to object again a trial a guinness sensually asking hoping that the judge will chime change his mind for no reason at all when there's been no do no change in the evidence presented and this this is consistent with the current trend in the law to go away from antiquated overly harsh pleading requirements as well as the public policy of the state which is to  gate issues on the merits rather than dismissing them on purely procedural grounds especially as here that all the purposes of the forfeiture of will have have been unless there are other questions on the forfeiture question turning to the merits of the who are here improperly admitted three hearsay states the first was melanie banner who was not part of the conspiracy at a third party testified as to what her sister in need of bell who was one of the co defendants told her about the plan for the crime for her seconds val testified as to what giles and now argues that through this statement it that it did further it's a conspiracy because bell was encouraging banner to remain silent again it's important to remember though that that banner was a third party they the other conspirators did not expect her to join in the conspiracy they were not hoping to join have her join in the conspiracy and if you look at at banners actual testimony regarding what bell said bell never asked her to remain silent never told her told her that she shouldn't tell what she'd heard in fact there was no reason to ask her to keep silent because at the time belle made the statements she did not know that the other  over to banners apartment and that she did not know that dan would know we have any knowledge of this conspiracy and it is for these reasons that this statement simply did not further the purposes of the conspiracy second regarding bell's testimony as to what's giles and robinson told her about the crime scene this again did not further the conspiracy because it was simply again mere narrative at this stage all that was left in the originally they were going to drive to bell's apartment later they decided to drive to banner's park and as a result giving bell a blow by blow description of the murder scene did not help her become a better get away driver didn't help her any more successfully navigate the streets than if she didn't know this information the appellate court's in full size is the fact that this information told belle's that the crime had changed from armed robbery to murder however belle already knew that she already knew that the victim had been killed and even if even if not even if this was still simply an armed robbery she would want to get away you want to not be apprehended and this would not change how she was driving anyway and it is for these reasons that this statement it also does not further the conspiracy as an alternative basis the state contends that this was an excited utterance however there is no evidence that giles or robinson at the time they made these statements were yelling that they were upset emotional injured obviously they had seen a traumatic event that evening but this is not the case where it's the the statement was the first words that they pain that they said after they ran out of the house after sound as if they left the apartment screaming juggins is dead instead there had been a passage of time and during that passage of time they were already thinking back through the situation robinson had told the others how he dropped the foot from the gun and that he had up a shell casing giles had decided to take the weapons to collect them to wash choosing to wash them off or for the fingerprints so these two were not overcome by emotion at the time they made these statements the bell they had been piecing together their mind what had occurred and so they had a capacity for critical thinking and as a result has to be for fabrication so we don't have the reliability we want from a exception to the hearsay and as a result it should not be admitted on this basis as well the final improperly admitted hearsay statement was stacy daniels who was the victim's girlfriend her prior consistency this was inadmissible because there was no allegation of recent fabrication or a motive to lie in the  conceded that this this statement was improperly admitted now they reversed course and say that it was admissible however you know we're talking a lot about forfeiture today this argument by the state was forfeited they adopted a made right after the incident in fact earlier in his questioning he told he explicitly stated that when this the data point is prior inconsistent sick and which may even if there is some implied  inconsistency or something to that extent this could have been cured by simply asking when the prior inconsistent statement was made without going into when the anything about the prior consistency and in fact if you look at the evidence at trial the assistant state's attorney did as he asked when the prior inconsistent state was made but then he went one step further which was impermissible and asked about this prior consistent and it so therefore this as well inadmissible finally the admission of these hearsay statements was reversible error normally you're looking at the the fact of withholding statements from trial it's  normally a hypothetical in inquiry but here we have a real solid example and that's mr johnson's first trial in which none of these three statements were admitted in and the jury was hung they they could not reach a verdict in fact there's evidence from the found defense counsel that the jury was hung eleven to one in favor of not guilty so that gives us a real example that when this evidence was not introduced the state could not convict my client and the real problem with this evidence is that it basically turned one testifying coconspirator into three him of watching some of the court counsel my name is lee a bandit from the illinois attorney general's office on behalf of the people of the state of illinois this court should reverse that or excuse me should affirm the judgment of the appellate court and hold it in order to preserve an issue for parties must object at trial in every criminal case no matter what and as to this particular case hold that there was no reversible error and the admission of three coconspirator statements and a prior consistent statement so turning the first to the preservation of issues on appeal the parties here are offering two different rules for this court's consideration defendant suggests that if an issue is included in a post trial motion and it is such the subject of either in  litigation or a contemporaneous trial objection it should be preserved whereas the state advocates that the established civil rule be extended to criminal cases by requiring a trial objection in every case i'd like to start with the fact that  has offered four cases from this court it is true it is accurate that none of these address the particular issue here so the support of language is mere dicta but it is also notable that in the starry decisis realm what this court says is that when the issues that are deliberately considered by this court they should be considered closed unless there is good cause for reconsideration what is notable if this court looks at these three cases is that these questions were not deliberately considered in specifically yes this court said the issue was preserved but there was no analysis of the issue and there is a citation to people versus you know now people versus you know as my opponent acknowledged did not involve a motion in limine e and if anything it's language citation whatsoever so it's really not fair to say that these three cases deliberately examined the issue and so under stari decisis that should be no barrier to its court considering and adopting the state edition yes technically they would have to be over preserve an objection to disputed evidence later introduced to trial the moving party remains obligated to object contemporaneously when the evidence is offered a trial and then will quote starts with in civil cases such as this suggested well all the state is suggesting is that because the criminal cases from the squad with that holding do not contain the reasoning or analysis of what the role should be that this is the appropriate time for this court to do so so yes it would be holding on both sides of the issue in the appellate court of illinois and it is true to nationwide that it's a matter that divides jurisdictions and i offer that just for the point that there are policy reasons on both sides of this so yes it is true that this court has never had a holding yes yes what is the substantive difference between there actually wasn't i would agree that there is no substantive difference here because the evidence did develop as expected and as litigated the trial but defended himself acknowledged that there are cases where the evidence could develop differently and so for talking about what the role should be in all cases this court should consider not only the facts of this case but the fact that in some instances there might be a motion in limine ear that is either too cursory to really fairly present the issue to the trial court in the pre trial stage or there might be instances where the evidence does substantively differ say for example i'm slightly different about this than i pace that it was a coconspirator statement a situation but the witness that was supposed to establish the timing of the conspiracy did not testify a trial in the end even though it was expected pretrial then that element of was the conspiracy i'm going at the time of the statement made maybe that evidence would be there at trial and so that does have the sort of sandbagging aspect that is the basis of work which are rules that yes the parties can say this is what we expect is going to happen it will be fully litigated in the pretrial setting but if that evidence actually develops differently at trial there is an important reason to have that contemporaneous trial abduction to make sure that the judge can either turn to the party and say wait a minute you're missing one step here then he says but even so motions in limine these are not says john trial judge could do that exactly that is true but actually that is consistent with the state's position because it is well established that since in the trial judge kept a time of trial can reconsider for no reason at all even if the evidence is concerned it might be just finally hearing the witnesses in person testify as opposed to reading the transcripts of deposition for example might make the trial judge want agree with the fan and also that there is a good reason to have these issues litigator free trial early there is an important there's something to be said for not interrupting trials for these complex evidentiary questions we are not saying that that subs litigation should be shifted to the trial stage all we're saying is that yes continue to have motions in limine continue to litigate them thoroughly pretrial but at the appropriate moment at trial simply make that objection to remind the judge ok here's the moment that the evidence actually show what you expected and it can be made in a sidebar if the if that the fence counsel is concerned about here not hearing instruction is before the jury and it would not cause a significant disruption it would be only a moment rather than fully l actually more complicated there's a couple bucks to his will it is that is the rule unless the evidence substantively changes or unless the motion in limine doesn't clearly fully fairly present the issue at trial that that is really the the  he is advocating and that is why states rule in contrast is much easier to both follow for let against and to apply for the lower courts if you get your to some botanists in your position as well because for if it would merely take a moment and say judge remember what we litigated the trial here's where the evidence is coming in i object and that is that is useful because the trial can take the moment to say ok yes i'm keeping my ruling as it as i made the trial and it would not cause significant disruption and because the parties know i have to object in every case even though it would require an additional stack compared to defendant's role in some cases it would actually lead to because there would not be these gray areas about did the motion in my mini fully unfairly present the issue did the evidence change enough so that yes i should object in that kind of rule there is room for or even a well meaning litigant to disagree with or to take one step and for the reviewing court later on to disagree and that is why there could be more forfeitures under defendants proposed rule compared to the state's rule and furthermore because of the fact that it is the rule and civil cases that shows how the substance of the motion eliminate it's been litigated it you know is justice twice indicated to have two objective then is a different issue isn't it then all of a sudden that the testimony goes beyond the the parameters of the motion well actually i would say that it's sort of a spectrum initially to a certain extent it would only be an objection to preserve the difference between what happened to charlie what actually happened the trial but there must be a certain point where a line is crossed that the evidence is so substantively different that it cannot be said that what the trial judge considers pretrial is even the same issue as what actually happened at trial and that's where there's the room for confusion exactly where that line is and so even a non sandbagging well intentioned attorney would think he hasn't crossed that line and think he doesn't need to make relative action but the review in court i disagree later on and that is why there's room for better and so it right but current defense counsel doesn't understand he's not going to make that objection anyway i mean if if if the motion in limine is a litigator and he thinks that it falls within the substance of the motion the most he's going to say at trial anyway is objection judge motion we're renewing their response to the motion eliminate or renewing our objection and what i'm saying is if their testimony was substantially different then the substance of the motion eliminate even defense counsel agrees that he would have to object to preserve it that's true but that's why its role is more complicated than the state's role because you have to figure out when is that substantive situation triggered and when is it close enough that it was already was litigated right so are you saying then if it was beyond the parameters of the motion in limine it would be a sufficient objection for defense counsel to get up and say around a motion in limine that's not a sufficient objection he would have to go further and he admits that if he understands it to be out he would have to make the objection but it sounds like what you're saying is a rule you have emotional let me get up and object isn't it the basis of his objection is going to be important in that instance couldn't he still be subject to forfeit your if you didn't make the right objection well i would say that making the objection that's the bottom line is is the admissibility of the evidence you know to say i object this evidence is inadmissible yes we litigated the trial court well it would be an objection based on hearsay i mean it would still would be an objection based on hearsay either way and my point is more that the fact that he acknowledges that in some instances there would be the need to make that trial objection that is where well meaning attorney might not realize that and might miss that opportunity and so the only chance for the trial judge to make that substantive ruling would be post trial when the jury's got i mean really the reasoning behind forfeiture rules is to make sure there is a good chance for the trial judge to fix the problem so there is no reversible error later on and so certainly him standing up and saying objection well increase the likelihood that the court takes a moment to reconsider that pretrial ruling to make sure that the ruling is accurate and to make sure that the evidence is admissible in making that attraction it will make will reduce that reversible error rather than no objection whatsoever because subject to reconsideration so that the parties should not be able to say judge i relied on your prior ruling you can't change course at trial that that would be incorrect because that in limited ruling is subject reconsideration at the time   trial so i guess i'm not saying it's a final judgment per se it's just that it's subject to reconsideration and so it's it's notable to that opposing counsel in both his opening brief and his reply brief does not ask this court to review the three coconspirators statements under plane air review in other  words he does not it's he says that it's preserved but he does not make the alternative argument that in case this court finds that it was forfeited that it should be reviewed for planar review so if this court adox the state's position and applies it to him that is the end of the inquiry with regard to those three statements and so then turning to the evidentiary question if there are no further questions on the preservation issue all four of these statements and i use the term four because i'm talking erroneous they admitted under the coconspirator rule all that must be shown by the prosecution is that there was a conspiracy that the statements were made during the course of the and defendant acknowledges that only that last part is potentially in dispute whether was in for the conspiracy and certainly bell was an active participant in the conspiracy when she heard the statement by giles and robinson she was literally at the time driving them away from the area of the crime scene certainly she and they still had in their possession weapons that were forensically linked to the crime scene certainly under people be parmly their statements describing what happened were meant to impress upon her the seriousness of the situation which is a factor to show that they weren't mere narrative recitations of what happened but it was to encourage her to help them get away from the scene and get appellate court and reversing did not give appropriate deference to the trial courts reasonable inference that at the time well made the statement to banner she realized that banner had been overhearing these conversations that bell was having withdrawals and trying to call barnes the intended first target of the robbery and that she was hoping that she would not talk to the police if that opportunity arose the fact that she herself was not a matter of a member of a conspiracy is not a factor under the law as to the prior consistent statement the appellate court correctly applied the curative admissibility doctrine as to the fact that the state below conceded and now is instead adopting the are the position of the appellate court it's important to note this is not a situation where the state threw out argument a in support of a position it was rejected and then on appeal for the first time is there an argument b all we are doing here is guilt there is no reversible error this is that detail that pages forty three forty three of the peoples brief and i see i'm short on time so i would merely point the court to that recitation of the overwhelming evidence of guilt but it is noticeable that giles's testimony as an eye witness as a codefendant was corroborated in numerous respects by daniels his testimony bell's testimony and as well by the as many components of the physical evidence that was discovered at the scene accordingly because of this the case that was said before illinois state toll highway authority versus heritage standard brain does recognize that difference between civil cases and formal cases and the state has offered no reason why this  historical distinction should be changed additionally when you do have criminal cases obviously there's a major liberty interest at stake here we have the most serious crime under the law and currently our most serious punishment on the law of life imprisonment and so in that case and along with the illinois public policy of deciding issues on the merits it it should in a rule should be adopted that does help  does see issues decided more on the merits than just dismissed on procedural grounds and to respond to the state's point that our argument is overly complex in every case no matter if it's an issues decided it will be litigated through a motion in limine a or through a trial objection in any case a lot depends on the individual facts of the specific case so take take a hypothetical case where you do have a trial jackson on appeal the courts will still look if the objection was the same argument that was raised in the trial court for the subject into the same evidence that's court so in every case there's going to be factual questions that need to be addressed and simply put the issue and the rule should be whether or not the actual issue was litigated by the parties and decided by the court below and as the state acknowledges that's what we have in this case and in fact in their brief the state says that this issue was fully and fairly litigated through the motion in limine so if it were not as as the state says shifting the formal litigation from pretrial to trial then all all that we have a trial is simply objection hearsay those two words and that's merely a pro forma exercise that again doesn't go to the actual purposes of the forfeiture rule next on the state's point that this or whether this court has ever addressed substantively the motion in limine a there is a line of cases regarding defendants prior convictions i believe it's people v patrick from this court in which a defendant if the trial judge allows us pretrial allows the defendant's convictions to come in as impeachment defense counsel ken front those objections are issued in front those convictions not objective that while and that still been heard held to be preserved for people so that same reasoning would apply here on on the merits the regarding the different number of coconspirator statements i think the difference is i'm looking at it from the perspective of who's testifying to it i'm looking at bangerz testimony as what robinson were telling bell the serious these details impress upon her the seriousness of the situation and to ensure her cooperation however she was already helping them she'd been helping them throughout the night at the time she's make they make the statement she's already writing them driving them away from the scene there is never any indication that she was going to go back on this that she was she was going to withdraw her help from the situation  these statements did not for the the conspiracy in that regard finally as to whether or not this was harmless error the state said that giles this testimony was corroborated by numerous factors however it was also contradicted by numerous factors giles was contradicted by stacy daniels he was contradicted by can eat a bell is contradicted by the autopsy evidence that the state presented so there was significant problems with the state's evidence and as seen from the first trial in this case it was conceivable that the jury would not convict my client unless there are further questions riggin would ask that this court's ro your arguments today your excuse