good morning everyone welcome to the illinois poet court first district first edition well as the others who are going to argue step up at this time introduce themselves and tell us who you argument and the appellant has ten minutes rebuttal we may change that if we have a lot of questions or if the argument becomes repetitive please remember to speak loudly our microphones do not amplify but merely record what is being said also please understand that we  a familiar with the facts of the case so please devote your time to your strongest arguments miss warl please the court as this court is aware we have raced four issues in the brief today i would like to highlight some of the most egregious errors committed by the state in this case including the state's use of other crimes evidence to portray mr henslee as having a violent character and a propensity toward gun violence the state's deliberate misrepresentation and closing that one of its own witnesses was so afraid of mr henslee that it had to be arrested to come to court to testify against him and the misstatement of the law in closing that the prior inconsistent statements witnesses did not count as evidence in this credibility case these errors undermine confidence in the outcome of the jury's verdict and therefore we would ask that they the discreteness or his lee a new trial regarding our first issue the state grossly abused the trial court's ruling allowing the state limited use of mr hensley's prior uses of a gun on the date of the church offense while there were certain events that the trial court did allow to come in defense counsel did successfully secure a promise counsel had argued that this evidence while having nothing to do with the actual charge then it's kind of patrolled his lee i'll quote him in a cavalier attitude that paint him as a killer and dangerous person after this the defense counsel made this remark the state promised it would said what do the show they show the different it was up shooting his gun on nate he was like a ticking time bomb waiting to go off and he was having fun out there this is this the same manner in which the state used the evidence here with they did was they show that mr henslee was the kind of guy who uses going in the circumstance and if you look at the first event they came in involving the fate of between mr hensley's brother and various in henryetta days game the state had presented that evidence kind of show the circumstances of the the trial the jury's task was does the state's theory make sense and perhaps there was a risk you know when you're hearing that there's been this i'm going shoot out all day and then the state is saying perhaps the jury would think that i thought maybe perhaps the state afraid jury would think that it was understandable that he committed the shooting so the state sort of turned then but was generally just evidence of this ongoing fight into this sort of deal or mr henslee masterminded all of this prayer events and children dangerous  of this case there was no physical evidence which type mr henslee to this crime he made no statement it depended entirely on the credibility of the state's witnesses they were all four convicted felons and the two main of the fact that they claim to be present but were innocent so when you're portraying mr henslee as uniquely dangerous amongst the scene in of criminals it gives their testimony kind of more credibility in that regard and stanley and the others came to shoot at him while they had gained permission to energies that evidence arguing that it would not be that prejudicial because the jury would not be horrified to learn that he acted in self defense the state immediately argued in closing when mr seely comes up and starts shooting at him present showed insight into his character they were using it directly to show that he was a bad person capable of committing this offense with a propensity for gun violence and again by the state had promised not to admit that particular evidence at trial c actually had mr norval stand up and demonstrate to the jury how mr headley had appeared in that circumstance the elicited that evidence from another witness who testified that he could not even tell that would be james davis well before norville testified and well before they knew he could recant and mr davis said when he saw that event he could not even tell what type of gun mr henslee was holding so they had lost any relevance that they had sought after at this point and were just kind of  would have called the police when mr beazley went to get his face at that time because then it could have stopped the events from occurring interestingly if you take a close look at mr henry's testimony but he said was he was in this fight with mr hensley's brother they were of this ongoing fight between them it's it's very probative to show that mr stanley had come to his house and started firing at him it becomes a little while it is also probative to say that perhaps he fell back fire back just to give the jury the picture of events it becomes very it's also very prejudicial so when you weigh these together that's an argument on why it's not admissible the state did not need to present that evidence it's kind of similar to the lindgren case that we've cited which is  illinois supreme court case there was evidence that the definit was charged with can committing a murder against his real friends grandfather and then there was also evidence that after that murder he and his girlfriend went to his ex wife's house and set the house and fired state introduce it for a time and place proximity in the court found that it was relevant for that purpose but then found that it's prejudiced so exceeded it and since the state could establish time in proximity through other manners they didn't need to present it in that way so it's argument here that while it did bear some relevance it was not necessary to come in and particularly because of the manner in which a prejudiced mr henslee in particularly given the way the state used it specifically arguing like i in and so that was fully with it and so there is to an extent when the evidence came in at trial his objections would have been futile at that point but specifically when he did object when the state presented evidence that he did promise it would not present and the driver certainly i do mean other people yeah and i think i've already touched upon the fact that the case depended entirely on testimony and why you would view your bill in davis testimony of caution i think the driver safety was probably very compelling so the jury did which actually is a great point to talk about another air because he was not a suspect himself he was instead a victim and he had lost his fiance his if you he testified initially sol the shooter only come up behind him and of your view mirror for a few seconds at eleven thirty at night and then immediately after the shot was fired he ducked his very first statement to several detective and then also to his myself that's what i'm told at trial he did say that however that's an interesting there were problems with that explanation because if you take a look at what he was telling the police he told detective colvin that what he could say he wasn't totally non forthcoming he said i can tell you that i switched her to someone that night and i can tell you he was my buddy i don't know his name but he lives on carlos's block so in fact he was actually talking about her listen sleep that night he was steering the police to try to help them find information by mentioning his name which is inconsistent with his later testimony at trial that he was kind of withholding and that's why i think it was really important for the jury to consider his prior inconsistent statement which in our second argument we've noted the pr of the law and telling the jury that prior inconsistent statements don't count as evidence what they are to consider is what the testimony of the witnesses told them in court and they specifically highlighted the general instruction that is given to the jury that says take a close look at this the evidence you consider consists of testimony of the witnesses exhibits and stipulations that the court has received the evidence you are supposed to consider consists only of the testimony of the witnesses she said that means we're not here to talk about who said what the police of what time it's not what christoffersen it's what christopher smith told you she said so she's highlighting his in britain portions and when you consider this alongside of all the other areas it's like the state's not giving defense counsel access so it's undermining of that evidence and continuing to know what hell kind of prosecutors misstatements in this case the prosecutor also told the jury that dear it's henry was specific evidence we have is just that morning when the parties have been debating whether defense counsel have the police reports or not the state had said defense counsel wanted to question him about his hopes and testifying in this case in the states and what i can tell you that i talked to it would be best to the main conversation with the prosecutor specifically if you combine that with the evidence that he fled the scene and the presenter specifically told him that morning she would not be discussing that case if you i mean he would obviously i'm he would wonder what casey was talking about again that it was her information belief he stopped coming to court because of this murder investigation when she told the jury in closing let him come into court and she didn't specifically say in handcuffs but that he had to be arrested to come to court to testify against him respect about his fear of mr henslee that was a deliberate misrepresentation no matter what race but i also think the state did have a duty to correct the testimony particularly in light of the fact that since council did not have the police reports itself that could not prove and he said think leetch actually leaves an exception for this case because this arse leads are specific issue his defense counsel cannot properly cross examine the surrogate medical examiner about this finding on of pseudo stippling that he made they say even in the report when someone makes a statement that it explains past events which are potentially relevant for future criminal prosecution they are giving testimony hearsay so here as we each pointed out when corners make a finding this crime it's not true the ballistics evidence doesn't defend to this crime he was carrying three fifty seven magnum it's what he pointed it derrius or pointed supposedly at the ground but then told various hammer you go get your guy that's that's what smith in this case was consistent with being fired from a three fifty seven ball and it was from a revolver by the way and not from an automatic weapon like a nine millimeter because there's no shock casings left at the seams these were bullet fragments holes that were recovered this witnesses plus some other evidence is considered overwhelming evidence so there's no way under the law that that really this case could be considered anything less than overwhelming evidence in this case and again it is on tru to say that there's no physical evidence linking the expected this evidence to be used i would point out that the trial judge at that time with help rule so that it's not as if this was a violation of some kind of vote of a motion in limine at that point i would also point out that at the time of trial experienced defense counsel might may feel represented one of the defendants in the browns chicken case didn't object in this case the fact that there was a period of time that transpired between what was said originally and in the trial in this case is highly suggest there was a song sort of informal conference of the parties as to how the sevens was going to be used in this case and in any of that as i said defense cuts of the not object so the only way that this this issue could be authorities almost everyone in this case was looking to for some form of retaliation retaliation with a gun and that is true of our witnesses to that is true and so the prosecutor was entitled to respond situation and point out in point out fairly that for instance with christopher set his initial reaction in this case was to having his girlfriend shot and him being shot and severely injured in this case was to seek revenge that was his initial response it's it's disappointing to understate it but it is another level sort of understandable human reaction but it's disappointing that he didn't do the right thing initially but the fact of matter is that his mother talk sense into him and that he did do the right thing and that the jury was entitled to consider that in terms of his credibility that ultimately he made a choice to do the right thing to cooperate with the authorities to seek justice pursued through the criminal justice system and not in the streets with at those pages are the prosecutor in this case did not use the word fear and she made the century two different arguments she said that there he said he was compelling because he had to be brought in testified to be arrested and testify why don't you voluntarily come to court why we felt terribly cooperate with us the fact that he had to be brought in against his will to testify in this case undermines fairly the argument that bad various henry we just  came here to get a deal from the prosecution that was that was the argument the defense counsel raised we're entitled to respond to arguments raised by defense counsel this was a fair comment both by me evidence in the record and in response to  have is to intent specific intent to kill that individual and that's what we have here we have we have the defendant in this case standing in firing at the warrants family this was after he challenge various henry to a dual i being there's an argument here that this was just plain self defense but but keep in mind that that the best counsel says that defendant just heads gun pointed in the ground at his henry go get his gun and go have shoot out which is exactly what happened so that the idea that this is self defense i think you know maybe at one point in time it may look that way but if you look at all the evidence that was submitted to trial it's pretty clear that this is not s sulfides and that defendant shooting at a point when everyone else is playing the scene all the witnesses talk about everyone else is fleeing the scene the fenton gauges a minute and a half gun battle now he's a adversaries in this gun battle they're the ones that shouting out things like i see you and the fact of the matter is that even after the shooting he says did you see that i don't want to use the word that anymore did you see that n word head off pop up and down side to side with ever it was after he shot cold record what exactly it was but it's pretty pretty drawn out you know usually judge actually had to step off the witness stand and point out the defendant in this case there's the prosecutor's entitle to make their comments about the demeanor and the and the credibility of the conduct of a witness on the stand so any sort of with for information about about his demeanor was was absolutely fair game that's well settled law with respect to the alleged claim that there's  courts to look at closing arguments in their entirety and not just snippets and i submit to you that what that defendant's entire argument never take it or situation is based on the snippet it's based on and then sixty three to sixty four and if you just stop we're spending tells you to stop at m m m sixty four and maybe a looks like prosecutors actually telling the jury that all right under your jury instructions not to consider prior consistent statements but if you look at the record that argument that the prosecutor is making actually carries on all the way to m m m sixty eight and you know because there's verbal look at things so that our the prosecutor starts off by saying well if that's their argument this whole argument about whether it came out of the back seat or not that's their whole argument i can dispel it if the case doesn't rise or fall i can dispel that ten seconds that's where that section of argument this particular argument starts and then sixty and then then sixty eight we see that are going to come to  conclusion because the prosecutor then finishes up by saying the case doesn't rise or fall on this particular point so what happens between and then sixty four and then sixty eight the prosecutor talks about prior inconsistent statements prior out of court state the prosecutor was saying that can't consider prior to court states that when the when the prosecutor then went through in talked about the prior out of four states and the fact it matters that and then sixty eight when the prosecutors wrapping up the section she said that's the reason you shouldn't consider christoffersen this prior body's is because because hey he admitted that he was lying but be a witness doesn't remember their lives people don't remember their lives they get caught in trying to remember the lies he he remember the truth of what happened and betts why that's why you should you should consider his his court testimony as opposed to his prior out of court statements to the police because those higher output statements were were not credible they were lies that's what she says she doesn't say she doesn't say can't consider prior inconsistent statements i would point out too that the jury was instructed immediately afterward that they were not to single out one instruction over another that time and then that night you know believe and they were also properly instructed on the use of  the record i just can't you know i'd have to go back and look at my library but i know i know that's in the record just quickly i just wanted to something that just justice like that actually two things that you brought up on you were asking about whether there's any evidence to refute various henry's testimony that he was he himself personally was not aware that he was a suspect in this case it is beyond argument that there was not there is no evidence the parties in this case admitted under seal the will the police reports regarding that other investigation and i'm not suggesting that we that we talk about all the other facts because that is a that's a pending investigation that this court is entitle to review proving charges in this case had indicated to the police that nothing was going to happen in this case until we talked for the police talked to jerry sentry soul at the time that the troposphere in this case was not charged with prosecuting dairies henry and that other case at the time that she makes a couple of statements about believing her statements about belief as to where various henry was or why he was not in court she had not talked to very sorry very sorry was out of state he was in wisconsin or minnesota she had talked to him the statements of belief are based on an assumption so was the question do you know if you're under investigation or have you talked to the order to prove any sort of claim of knowing you supposed testimony defendant would have to prove that there was fact false testimony in this case and there's no there's no evidence there's no way to prove that there is henry was testifying falsely when he said he wasn't aware of the fact that the prosecutor had some sort of conversation where she immediately told him we're not talking about anything else except for this case doesn't prove anything it doesn't establish that there was there was false testimony in this case on the other thing that you mention was that was leach issue with respect to issue three in this case it's opposition that that reaches finding that the the use of a specially a an autopsy report by a who county medical examiner is a business records non testimony and therefore were outside of the box of proffered will be a bolus situation our medical examiners are paul to examine everybody that comes in whether it's from heat stress from from  heat waves from zero up from from a death on the street a murder case they're called to that they are servants of public health is what they are and how they were term in  and so in this particular case as and in cases involving our cook county medical examiner's office these are business records they're not these are not testimonial we are not within the round of profit with respect sort of usurped the position of the court in that regard and particularly where the state is arguing that this is relevant to show what type of guy he was holding what the state actually said and what degree what defense counsel agreed she was will still establish that he saw the guy when he came to the house we just want to know that he used the gun in a threatening manner and again i reiterate even before norval testified they asked davis about this incident involving the threat and davis said he could not even see what type of gun mr hinckley was holding murder investigation investigation here in chicago aren't you he said not that i know of defense counsel followed up you didn't hear anything about that and he said no sir the prosecutor had said that lee said it's upon information belie in talking to detectives that he fled the state because he was avoiding being questioned by the detectives so by the police that also you didn't hear anything about that is inconsistent with what the prosecutor had said to the court and her testimony not her testimony but her statements pointed on the recent fourteen occasions he called him her last the only time he said mr henslee was when it was written in one time he said carlos the defendant mr henslee and in another instance after the prosecutor it said you understand what i'm referring to the friend and i'm talking about her liz hensley and regarding the identification he actually was pointing the courts the prosecutor asked him soon as he got to the city and do you see the fit in court and he said yes he's sitting over there counsel table there was some discussion about the fact that he was wearing a black shirt and he couldn't say what the colors first the trail court did ask him to go over and look at those colors so when he says when the prosecutor although she never said fear he just said that speaks volumes about his fear of the defend it so it was certainly him pla regarding the comments about the underworld i would just say that this kind of talking about how this was a case about the underworld crashing with the real world working on a green in the jurors lives that heads they had come so far to court to testify against someone to bring justice against someone who had been the jury's world this sort of when the jury was supposed to consider their criminal history and considering their credibility telling the jurist instead consider how far they had come and of undermine what the jury was to consider and telling them that rejecting these witnesses would be a disservice to kiana green who lived in their world world and who had finally brought them to court implied that if they don't convict m where the state did misty the law regardless of what they later said about credibility in no uncertain terms told the jury the evidence they are considered consistent but it's that they should focus on this instruction that said that it's to consider only the testimony in court and overwhelming it was are these witnesses telling the truth the supreme court repeatedly says in cases where it boils down to credibility we don't let errors go away harmless we consider them greater this was truly one of those cases the jury need to determine  telling the truth in these areas were together