wrong for instance the fact the trial judge found that he would allow this impeachment because according to the judge the medical experts would merely be testifying to the statements that were made to them by morris thus allowing morse to commit perjury by proxy i d taken could be used to impeach his testimony on in the illinois supreme court found that the issue was properly preserved even though the defendant did not testify so if the defendant the need to testify in that case and there's no reason for the extra fee called in this case the fact th issues in each of those cases the opinions mention that the ruling that the defendant would need to have testified in this case is to preserve issues for people who will relate to a case that dealt with constitutional problems that those are evident sherry i'm stating that these experts will be testifying to their expert medical opinions and that their testimony would be based on their observations of morris and he additionally mention that the radiologist who took the x rays because the case was makes a distinction between factual factual determinations legal determination and sed and i think a lot of some sense as if it's simply a legal determination it can be made prior to that prior to the to the to the trial and that's something that reviewing courts could look at and it's not something that speculative in the in the in the instance with and it doesn't testify but if it's a factual dispute then you need the defendants testimony to see how far the parties try to go with the defense testimony and the  judges and the judge's ruling is subject to revision any times and then the appellate court can look down and say you know now we have a record and we see that it was just statements of the defendant or it wasn't just a piece of the fan and it was x rays officer of the court was representing what the experts would testify to so it's not speculative in terms of whether they be testifying statements made by morris or not counsel attached several documents x ray results  to his offer proof to the motion to a new trial and stated that these experts would be testifying to their expert medical opinions that they would testify that morris had a limitation on his ability to move his shoulder  and there's really not a legal determination to be made about whether those that is accurate or not the fence attorney represented it was accurate in court and are really no reason to doubt those represent to you or me just that they that the and counsel knowing that the kirk explicitly how i will let the state introduce these statements there's no speculation about whether the state would introduce the statements if you prosecutor said yes we will fred introduce a statement the defense had at that point to adjust the strategy and put its kind in a better position by making sure the statements will come in but in this home why did it basically harmless because under the law of accountability several witnesses put your client there and whether he actually threw this are at the deceit are not under law accountability he's there anyway i mean he's running behind his own to him by the girlfriend but then driven by another participant and the same could be true of the bronco we don't know that that morris was the driver of the bronco based on that the identification testimony alone  minute right not to testify based on the judge's ruling the decision of whether his own testimony to be used against him was in the hands of this attorney not him however if you're parlous their analysis i would argue that the evidence is not overwhelming and that a jury could have rejected this identification testimony there was only one witness and that was graves that actually testified that morse threw a pol in the statement yes yes i also believe that doesn't easily though doesn't usually succeed even in the face of this type of error that harmless harmless error analysis is appropriate is it would be easily theory that could have confronted each aspect of that testimony is it can't be said that the jury would not have rejected this evidence it's worth mentioning as well that the police had evidence that and as did the prosecutors that some of the participants  were involved that ultimately were not charged and the jury similarly could have rejected this evidence in terms of accountability and decided that more side was not  d i also know you are the key because additionally during the defense case did not allow counsel to rehabilitate a witness after state introduced evidence that that witness for second degree murder that he implicated morris in court and defense counsel cannot tell the jury that was received you know pled to that lesser crime ross admitted hitting this scene in the head with a baseball bat and did not get was not convicted of first degree murder and that's simply whether there was actually a deal there should have been a question for the jury early something th should have heard to determine how reliable that testimony is it was not testimony that was given not independently of the more you may please the court turn to the first issue that the first thing i would notice that the i think we can say from the record that the defense counsel never even spoke to these so called experts  and the reason i say that is when he was making his arguments he submits three pieces of paper the first is an e m t report from the jail eight days after the murder it's not from a doctor it's from a paramedic and that basically says that the defendant related a history of shoulder problems chronic shoulder dislocation then we have an x ray report a month after which just in the x ray itself which indicates some sort of a damage the shoulder and then there's a third piece of paper which is a printout from an internet site which explains what bill sacks deformity is and i was certain that had mr decker actually spoken to this radiologist or to an actual expert he would have had to include an internet piece of paper saying what will sex with the doctor what it is that this is not an offer proof word mr decker stood up and said the doctors are going to say the following things are all concern here is not the sufficiency of the offer of proof i or whether he should have put forth this and i concerned hears that we have a statement which the trial court held was taken in violation of this  rights and you're it meaning it to impeach a third with this a third party and does that come up against the james case you know if that's that's well even if that's true the defendant still has to put the witnesses on and the most recent pronouncement by the illinois supreme court is patrick philips and in philips they talk about in to the fact that when the defendant was talking the psychiatry's to mention some other attacks and some other girls and therefore the defendant didn't call the psychiatry just didn't take the stand and didn't present that insanity  defense and the supreme court says you got to do that you got to put those people on if you want to raise this issue there's another constitutional issue the issue of being able to put a witness up on putting a defense on and that whitehead case although it proceeded know what these witnesses are going to say mr decker said they would be making some sort of a pronouncement well phillips phillips is a little bit different because phillips of the situation where the judge says i don't know what i'm going to do argues that in this case we have a definitive ruling to the extent of his be definitive about what he was going to do but your head of definitive ruling in whitehead two and white head is cited approvingly in ph one person that would be an expert title to make it opinion if an opinion was going to be given it would have been by the radiologists of course as defense admits never spoke to never saw the defendant we don't know if they're going to say he could throw underhand but the the point is that mr decker got up there he didn't say what the witnesses were going to say he made some sort of general statement about they're going to opine that he couldn't do these things i don't know how he would have gotten there it i simply and that's part of the probably can't tell from this record how they would have gotten to anything that would have been hell for the defense i don't know how you can evaluate the prejudice unless we have that the offer proof is is very meager as i was saying earlier it's pretty apparent that the defense attorney never spoke to these doctors i don't know how they could have even got an opinion out and had they might my sense is that had they appeared the will still ask for an offer approach as to what they're going to say him if he has experts he's got to file there are tell us what the opinions are going to be and he doesn't do that doesn't do anything specific he just says they're going to testify and again the e m t report talks about history of dislocation that clearly was from something the defendant himself said saw we don't have enough information to evaluate this and which is the whole reason why patrick phillips and whitehead supreme court and induce the supreme court says you know you can't have it both ways you can't throw this out there and then use it as a shield you got it if you're going to make this argument and you're going to say that you were deprived so that we don't know what you were ways that this could come up traditionally when you're cross examining an expert one of the things that i have and i cite the past case and it's kind of black letter law where you ask the expert well if you were aware of the following would that change your opinion and one of the things that we pointed out is that is being able to show the expert the tape of the defendant saying i threw the barbell or the the pole that certainly is  witnesses with this to see if the chiefs are and so the question that immediately jumped in my mind is is there any authority or maybe if there isn't any authority what's the argument is there any authority for the proposition that you can use a suppressed statement to challenge an expert witness to change the i don't know many around but i think it's important to no in this instance in and it's also important to talk about easley because this was a statement that was not suppressed because it was involuntary the finding of the court it easily was that it was involuntary statement there was this elaborate ruse that they concocted to talk to this appellate court to take a further step with regard to harrison james and find another harris exception that deals with what i call personnel that and say anything without the fan the stakes are huge are you asking us to find if we put waiver aside for a minute we have just find that there's another hearer's exception that has to do with well just have a statement made to the to the paramedic and i don't know that the paramedic could have ever been qualified to give an opinion to begin with certainly if the opinion is going to be and then again that raises some more questions as to whether this evidence could have ever come in which again comes back to the question of whether or not the offer of proof was sufficient in it and it really wasn't in this case and that's part of the reason that the supreme court in whitehead patrick phillips required put the witnesses on let's see what happens let's see how the cross examination goes let's see if that the witnesses is confronted with this tape testimony let's see what things come out and then we can make a full ruling on the case x ray examinations things like that not that specifically in terms of putting the statement in but i still think we should be allowed cross examined an expert again it depends on what the experts say i mean if a param the x rays a month after the murder so we don't know the relevant times we don't know that when the defending history of shoulder dislocation could be yesterday it could be i have a chronic dislocation over you know over time even the hill sex definition from the website says you can't tell from the thing that's talked about in the x ray whether or not this thing chronic condition or a single condition because the the bone can be shaved down  the state's motion in this regard and with the june rule well when the defense indicated it was going to call these witnesses we made a motion to be able to impeach those witnesses with the statements of the defendant based on our assumption based on that that if they would be relaying information that came from the defendant himself all right so even though this its offer proof was allegedly incomplete the real be real question is whether this statement this we have a circumstance where the defendant rebuttal i believe it is impeachment but i mean i think it is it is rebuttal testimony i mean it doesn't as it can be impeachment again in terms of when the doctors in the stand of the doctors asked if you were given the following set of circumstances i find that statement where he says he did it would that change your opinion and if the doctor says no i think that's an peaching situation because generally if a doctor says something like that i would assume the jury would give it less  when the defendants in self says i can prayer when the doctor says he can't the doctor doesn't look so fit well this figure from looking from this a purely philosophical viewpoint here you know the these suppression of evidence these these rules the the poisonous tree didn't with us for a very very long time and we you know the acceptance of popped up we're going to allow these statements taken if something there should be happens for example might the defendant live on the situation where we don't have perhaps perjury by a witness but we have him relating medical records and possibly an opinion is that state of facts reviling this is intended doing to preclude and preventing deter misconduct i think it's arguable here that this isn't misconduct on the part of police this wasn't  keep evident i mean we all admit that they know that very often with good evidence is excluded reliable evidence is excluded under the exclusionary rule that's really the place we pay but we pay for it because there's been misconduct by the police and when the you know on the spectrum of misconduct i would argue this isn't even this kind of this is of the state's honest mistake it's you know it's a technical violation just off i think that should weigh in the balance as well and then when we're talking about what was happening here i mean the whole notion of perjury by proxy that it is an offensive concept that the defendant can pull a fast one by it if in fact these are the facts that the defendant is lying about whether  system that he is allowed to use another person to say what he's not going to get on the stand same stuff and then i think that's part of what the four justices in that supreme court case were talking about and they did in very strong language they were very offended by this whole notion that you can get in through the back door but you're not going to get in through the front door so i think it is a reviling situation and i think it is one that rise out fraction and again given the fact that we're talking about  question because we we have this these two things we have the statements of the defendant to these examiners but we also him this just still unmentioned this objective evidence that the supposedly this doctor's go testify to this x ray and so this perjury by proxy thing which i read is troublesome and you know there's this there's plenty of case law that that you can't you know hide behind you know these suppression motions to mislead a jury and so the question is is the jury being misled ok and i think that's a real question is if the doctors are allowed to say he can't throw this thing and there's a statement made by the guy that says i threw it isn't the jury being misled that's that's a question epps what with regard to the just for example going back to when they talk to james about the reason they didn't want to expand it is because the balance that they're trying to strike is they don't want to courage police misconduct that and if you if you if you open this up to all witnesses and basically what you're saying to the police you know there would be a benefit to your misconduct you're going to keep the  it my question is can you make an argument that it's not foreseeable that the police officer on the street that is constitutional violation is going to somehow heap some examining physicians off the  stand no end in this case again if you're looking for see ability to have the police officer not slipped up and that left out a couple of words the defendant said would have said the same things and i he didn't pull a fast one on the defendant get the defendant to confess defendant understood and the judge found the defendant understood what was being said to him understood his rights he waived his rights i says that there was a technical defect in the rights i mean i understand your question of let's say that in a different case the only thing the defense presents is the x ray i mean see i think there's relevance problems with that without further testimony you just have the x ray what's the significance of it the doctor would then have to come forward with some sort of a state now  witness that even said he threw the poll remember there's there's three witnesses that that identified him in one way or another as being involved in the beating only one of the three says the polls and this wasn't the major portion of the case let's say this whole thing never happened that the poll part radiologist would have said or could have said that would have been relevant for all we know he just said it's in effect in the shoulder i can't tell you whether or not it would affect his ability to throw i can't tell you any of those things  thrown the house at different than james well again the problem the fact is that use the word if several times there and again we just don't know there wasn't just the x ray here it was also just the paramedics waiver as opposed to overturning james and although we've offered a way it's just palmer indicates to to to deal with that i still think in terms of cross examining the statement which still be explored and the problem is because there was no offer of proof and because the expert normally in a case the experts have to you have to turn over their opinions and make those experts available for the other side and the other side going to talk to them and a things and show me the video and and all these other things but none of that happened here we didn't comply with to the to actually calling these these experts you know the  him to reconsider that and he did reconsider and he changed his mind suppressed statement so i mean there's another instance of you know the judge here if he hears the evidence and here is how it goes in he could say there's no reason for the state to be allowed to to do that in this instance y no no opinion that's been disclosed and let's say the witness up gets on the stand and he says yeah i looked at this x ray and i see this thing in the shoulder and you have an opinion about whether or not he could throng in that hall he goes recognizes that this could happen and that's why the the evidence has to come up on the stand so that the just so that one the state has the opportunity to step away before he testified he said i'd like to be able to ask him about his levy of second degree to to this case he was a recently one of the charge defense in this case the record seems to indicate that i think one of the president's on one point says you know the reason we had to give him the second degree was because we had a witness problem he was demanding and we had to get we had to get something out of this i mean that's the that's the reason that that all this happened  generally you would not disclose all that to a jury obviously the concern of the state and the judge at that point is you know what relevance does it have when you call the witness that the state gave this person the opportunity to to the second degree murder thing of the day for celeste the situation is not present in these instances where you don't call the witness yourself that those situations certainly if we had called off mr w we did with mr graves and grace took the stand we got into an extensive discussion and the defense was allowed to go into at length the fact that graves pled to a lesser charge of conspiracy got fourteen years we talked about that these things were all inquired into as they were probably should be but when it came to iran was in the defense argued at that point just well it shows his bias and that and they kept saying it shows bias and that biased to what you're calling him as the witness and so that the normal rules again would not apply now mr mr wallace got on the stand and he basically said he was there and he didn't remember who else was there the defendant's car was there and then in cross examination he did say yeah the defender was there i saw him there and i saw thomas there and then it was only after that that then the state asked him well you know didn't you talk about certain facts so this is not your traditional dav last type situation and therefore what the the court wanted to do and what the state was asking the court to do is to keep the implication from being out there that the state or the judge or someone believed that this case was anything less than a first degree murder case because this other guy got second degree murder and therefore you should consider that and then in the defense disavowed any intention to do that but the implication certainly would have been there that well you know this guy this guy you know it's only excuse me additionally counsel filed an emergency motion asking to take the deposition of dr john presumably because it's spoken to him he learned that he was was moot not even getting to the defense a chance to you know prepare the defense so you didn't suddenly in the middle of a trial for the judge to change his mind the defense would wouldn't have been prepared because they were  suppressed statement can be used for impeachment perhaps doesn't deal with that many questions about what the doctors testified to and it's not speculative the doctor testified that based on his examination he found a chronic shoulder deformity that would cause limitations and the second issue the circumstances of a witness prior statement are always relevant to their motives for making the statement if this is not some kind of limitation only by state's witnesses  there a defense witness was impeached with a prior statement and the court found that the circumstances of that statement were relevant to the jury's consideration the credibility of the same and so counsel is allowed to elicit evidence in which the