i expect to spend about seven minutes on opening and reserve two minutes rebuttal good morning janet mahoney on behalf of the people of the state of illinois and i expect to argue approximately seven minutes also here representing cavanagh heroes that's just how many of the circumstances surrounding mr hughes confession to shooting a life of coleman in the leg shows that this confession was involuntary this includes mr hughes age his limited education is an experience with the criminal justice system is extreme exhaustion at the time he gave this confession along with his emotional state and the deceptive practices of the police officers at the time so let me just kids confession to shooting coleman in the legs was not made freely or voluntarily and cannot be considered the product of rational intellect and free well part of this is because he was a teenager at the time that he made this confession  i'm looking at what the detectives knew at the time they were talking to him he didn't tell any of these one that's not on any of the videotapes that we have so we don't know that he said that now but he is looking at the voluntariness task we have to look at all of the circumstances at the time and he did say later on that he regularly abused cognac and marijuana so that's just one of the factors in addition he also had thread education and he dropped out of high school with a c and d average furthermore he has only criminal contact was as a juvenile this was his first contact with the criminal justice system as an guilt they were for unlawful use of a weapon and cannot trust a vehicle and more of that was brought out at sentencing that he was seen by someone with a gun at one point and that he was found in a vehicle that was know that they were educations at the time of his confession he was very emotional about the recent death of his grandfather who his girlfriend believed to be his only family member his grandfather had died a couple months beforehand but during the tape recordings mr he says that he discovered this the day before he gave these confessions he actually interrupts his interrogation and asked the police when his grandfather died whether he died peacefully and then when the detectives leave the room he begins conversations with his grandfather saying he wishes he was there that he really needs them right now later on he compares his grandfather to mr coleman saying that they were reminded them of each other that he was very angry that this man was dad because you met him so much of his grandfather and that he was probably very much like his grandfather reading a book or something about sort when he did get his confession he was in tears he stated he was lost because of the association that he had between these two men the characteristics of the interrogation also show involuntary ness of this confession mr hughes was very tired by the time he gave his confession he did not give it until four fifty two in the morning he had gone fifteen minutes and he didn't confront us until five hours later so how do you draw the line between they have statement and before the judge about who tells the truth and who doesn't tell the truth and it matters and that's a need and almost immediately after that he's confessed as to shooting mr coleman in the way but the way you characterize it is the tactic mitchell led him to believe that she would be testifying for i didn't see that in her statements she said if somebody asks me is he sorry about it is he not sorry about it i'm going to have to talk about her for you if you're sorry about coleman issue precluded from testifying today on that mission because she's a polygraph examiner know that what she said was i have to tell who said the truth and who didn't say the truth and so therefore leading him to believe that if he failed the polygraph exam she would be telling the judge well you know he's wise he doesn't tell the truth and not that is what she said she didn't say if you confessed to me that will go before the judge she said if you tell me the truth i'll be able to tell them he's a good guy and that will help you out or i'll be able to exam whether or not he felt that she was not happy with some of the answers so they asked him further questions about doesn't mean he passed or failed no he didn't he that doesn't lead him to believe that he feels she led him to believe that he fails and that he needed to tell her the believe the way he said it and the way it sat on the tape to believe that we had his feet your fingerprints from the scene he might not have used those words but the way he spoke to him did indicate that from the viewing of the video and detective ford later admitted this nineteen year old who was in this motional state who was tired into believing that they had more evidence against him than they did that they had eyewitnesses against him so all of these errors oh these factors together cumulatively it's not one thing it's all of these things together that made this later confession involuntary you know the state principally argues that this was affirmatively abandoned below and i just want to address that but quickly and based today what will be proceeding on which talk about oral argument and their reasons why don't you look at the transcript the transcript focuses on was quoting to this physical physiological mental educational psychological state capacity and because he was confronted with material misrepresentation so that's all in the written motion to suppress and although the defense counsel did not only are you every issue in her written motion to suppress she did not affirmatively abandon her written motion to suppress and in fact the trial court and this is even in the state's brief expressed the allegations in the written motion to  ress the mental coercion physical coercion and said no i disagree with that so i guess i'm hearing or heard i'm understanding if the manifest way that the evidence standard applies to knows how can we do our job well they do put present evidence there twenty four hours of tape which is principally what we're relying on here which is before this court just as it was before the court below and there are issues fact about whether or not these things happened it's just whether or not this constitutes an involuntary can fashion so so where is the request from defense counsel to the trial judge just voluntary so it's your decision to milborough whether or not to decide that it's voluntary or involuntary and we would argue that looking at the tapes viewing the tapes seeing his condition at five o'clock in the morning when he gives  confession that it goes involuntary but all of that is detailed in the britain motion to suppress and we can't ignore that the written motion to suppress existed just because this was not literally argued in front of them a lot of things happen and they were all right now and the judge didn't have to stay you know i don't find it involuntary because i don't find that he was sleeping enough or i don't find that he was emotional enough and this physical the judge that i found this to be voluntary but you get to review detail no there was a very detailed motion for a new trial there were many issues raised but they did not actually reiterate everything that was within the motion to suppress the thank you mahoney on behalf of the people of the state of illinois the issue of race here today was a permanently wait and it's very simple figure out how that was many of the facts that counsel presented to you today came from the trial or the sentence investigation report and the illinois supreme court has made it clear that in reviewing a motion to suppress the court mean look at trial evidence to a perm a decision not to reverse the decision and the reason for that is because the court didn't have the benefit of that information the state didn't have the benefit of their information or the opportunity to provide that the motion that was filed here was boilerplate yes it was line but it's  information for the state proceed on clearly the state asked for clarification as evidenced by the opening remarks of defense counsel when she indicated that what they were going on was the lack of miranda being read in michigan in the conversation that the state could have presented evidence about how much sleep he had in michigan during custody there was evidence in the video about how much she slept and there was no opportunity for the state to rebut that because it was never a place the idea of the marijuana  you know in terms of it in terms of how sophisticated he was and and responding to that you know not every eighteen nineteen year old this is same could the state of presented evidence to rebut any kind of claim that he's so young that he couldn't figure out what was going on here no opportunity to bring in any evidence of his prior experience with the criminal justice system no opportunity going into his educational records is mere fact the court on the record a couple of times commented on how intelligent he found this defendant and yet here we are talking about his lack of education could the state of phone evidence talking about yes you know he was actually very bright he was just simply was lazy and didn't show up to school and got kicked out for behavioral issues and nothing to do with academics that possibly could have happened but we don't have that information here because this motion wasn't presented to the trial court it was a motion dealing with bring in dock and the court actually granted that defendant a little leeway th had to do with the handcuffing issue because there was testimony about the handcuffing and that was a little leeway that the court granted the defendant and other than those two issues that was the only motion at the trial level that is the motion that is on review here it's impossible to use the trial evidence and the to cite evidence to overturn what the trial court did because he didn't have the evidence when he passed on this motion and as you pointed out in the beginning this is only challenging what was stated at the time of the polygraph interesting only at the beginning of the correct it is but if you were to even take out that part of it which this is an affirmative waiver on top of a forfeiture because the motion for new trial is in adequate it just said that the court  whether either of the evidence was closely behind or the error render the trial fundamentally that is true and that would only be if you actually get to the forfeiture part of it if it's an affirmative waiver it's the state's position that you don't even get to the plane airplane doesn't apply to this affirmative waiver this decision not to pursue the motion that was presented here to you today but under playing are the yes you know whether he was under the influence of any substance he had been in the michigan jail ok so if you when was the last time he had any an opportunity have any think again that would have been a nice if we're going to be talking about it would have been nice for the state to be able to go back to michigan say he how long has he been in jail here but what happens if a hypothetical immediately before he's taken for the polygraph he smoke even admitted i had marijuana i just smoked it in the offices well how could you have read it is well i took the cigarette i still had the cigarette way and i used that to do it was in my pocket it's the last one i'm all done and then they officers take him and watch the court have the tape that this issue wasn't presented and under do you it is the issues that are presented to you that you had to review not to look through it to find a different one that the defense counsel didn't raise a different issue th whole circumstances riposte look at all the circumstances involved that's what the you know the by factors that we have to look in order to weigh the facts are the circumstances this is part of the circus and fact it might have been such because need to have the testimony of the officer in order to make that decision because he had been in custody in michigan so for the michigan police to miss this in his pockets for the chicago police to miss it when they transport it for the chicago police to miss it when they process him i believe it is not something that can be decided by this court in this case it would be have to be an issue that was actually dealt out in court with live testimony it is not to me not to and for all we know for for all we know that isn't what what actually was happening you need to have the officer testify in plain language what is it that you meant by that well it is you actually think that he was smoking marijuana in there well maybe we need to have a polygraph examiner testify about the public that i don't want to listen to but that's the point this is this isn't the motion that was presented to the trial court and yet and this isn't the issue that was raised in the defendant's br interrogation room smoking marijuana because he also mentioned the alcohol so is it to say that he was also in there drinking alcohol you know he's saying that he was a substance abuser and therefore it effected his ability to give a coherent statement and what i'm saying by raising this here today about him smoking marijuana in the interrogation room is wholly different than what was placed in the brain and was never living it by the trial court which is what we are reviewing here today with the job question here question what the f out of the question from a from the detector what the f were you doing in here answer the question you're smoking here now that we're all sitting in here smoking what discussion and i believe it's something that needed to be taken up in the trial court and it was not this is not argued in the trial court it's affirmatively weight it's forfeited in it's also the people's position that this was not raised in the dependence brief in the press but including the p s i i and the trial record to decide whether or not this is voluntary based on the totality of the circumstances the jury's in your brief and argument that your client had just smoked marijuana prior to the polygraph i did not raise that specific issue in my brief now i did raise that he regularly used marijuana and that the state did not prove that he was not under the influence of marijuana when he made the statement that i did i did state i did not state that at that particular time when he within the tapes that are considered before you and i did ask that you consider the totality of the circumstances everything that's on the tape i didn't i was the tape shows is that he reaches somewhere and he pulls out something and he's got a paper and he's rolling and he lights it with the cigarette that he now isn't it possible that if this issue had been raised at the trial corey the detective would smoking box where if you get a bottle meaning you have corrected the transcript from this interview in certain instances by saying the defendant didn't say nobody loves me the fans as he's walking around talking to himself said everybody loved me so how is it the at the we can now say the trial court error in making a finding it wasn't exactly asked who made me that hearing would have looked different he had this issue been raise that he was under the influence of marijuana at the time he was taken for the polygraph and the detective for all we know could have come in and said i saw a lot of smoke in here i can smell marijuana i have no idea if that he was smoking marijuana so i'm i'm kind of at a loss it seems to me that for us to address all of the issues that the defendant is raising we've got interested skews that most of them were presented to the the state had the burden below to show beyond a preponderance that this was voluntary and they were precluded from doing so they had the entire tapes in front of them that it was the police officers it was the state of illinois police officers that interviewed him and so they had all of this and they could have presented it and they could have had and by the way you'll notice on the tape he's he's asked when he pulls out this thing what is that it's a bad it's a cigarette they had an opportunity to do that and in fact they have the burden on them to do that if the defendant raises no issue on the motion to suppress that he was under the influence at the time of the polygraph i don't understand your conception of the state's burden because the state doesn't have to prove a negative until the defendant says i was coerced i was under the influence but in in the written motion the defense counsel did argue that his physical and his mental condition and all everything put together was involuntary once they raise that in the written motion to suppress it becomes the state's burden and unlike want to put one which they raise really where the defense has a burden to show that there was some sort of interrogation and custody which was what they were arguing but only because it wasn't in the written motion they were arguing whether or not there was some sort of interrogation in that car right between michigan and chicago here we're talking about momentary ness and that's race in the written motion and then it becomes the state's  is the legal decision whether or not this was voluntary looking at all the facts the facts are right now not contested there the facts that are on the tape so you can look at the tape and you can make a reasonable conclusion from the tape what happened and looking at the take the tape it's very clear what happened that he was very clear about when he slapped that he was very clear about when he was smoking cigarettes when he pulled something out of his pants when he was crying when he was talking to his father and what he studied the transcript was not the evidence it was it was conceded to at the motion to suppress but the court in trial said the transcript doesn't have a dense and even the state of the transcript isn't evidence the evidence the videotape and the videotape is nobody's contesting that the videotape was somehow tampered with you have the videotape in front of you and in the written motion it says look at this videotape look at all of these conditions look at that material retina surface and his shins that were made to the defendant and you'll see that this is involuntary and although that was not really argued it was in the written motion and the written motion must have more of an affirmative waiver than what the state's arguing and even if you look at the cases that the state relies on coleman smith make a tree and they're very different from here and in she meant there was a motion to step for that was just ignored and then there was an agreement we're going to pretend that this was between the defendant and the defendant that this was severed and just proceed with the simultaneous trials there's no agreement here that we're going to stay and we're just going to ignore the motion to suppress we're just going to  ignore what i put in there we're going to ignore and we're going to say it's voluntary except for these handcuffs it's voluntary except for in case he made this interrogation from michigan that wasn't that wasn't stated out loud that wasn't stated anywhere written there was still a bit more motion to officer and he never even mentioned the state police officer here we have a written motion where he says this is involuntary for all of these reasons and and ambiguous statement like this is what i'm going to be perceiving on today is not waive everything that's  within the written motion to suppress and just one more point bessie it says that that court found mr he has to be intelligent and that's true but that's just one of the factors education is actually considered separately from being intelligent so in an intelligent person who is an educated in an experience can give it an involuntary confession he was certainly conversant with the theory of accountability wouldn't you agree i don't know if he being near even looking being the lookout rendered him accountable i don't know if he knew that accountable meant as a legal term i don't know if we can conclude that from his statements by june i do think that he found to turn to be just as responsible just as accountable just as much a part of that as he as he was and he was very upset that she kind of got off this stuff free so yes i think i think that he was upset about that but i don't know if he knew accountability as a legal principle and i don't know i mean being that this was his first time in the adult criminal justice system i think it's hard for us to come to that conclusion speculation but he does use that word that's that's correct he does use that word but i don't know if we can conclude that he knew legally what that meant he's but he isn't intelligent individual but that does not mean that his education should be ignored or that his inexperience with a criminal justice system should be ignored or the other circumstances