before we call this next case well we'll call the case if there were i'm not sure both attorneys were here earlier but i did one advice both of you that justice robert gordon is the third panel member on this appeal he's not here today not available but he will be reading the briefs and listening to oral arguments and be the third justice on the well good morning to me if these are the courts you are as some extraordinary errors occurred during a flood is this retrial and i'm focusing on two of those today time permitting of course first the spectacle that was created when the state was allowed to ask leading this trip to the witness stand was doomed from the start he refused to even to be sworn under oath as required by illinois rule of evidence six o three so he was not even a competent witness he remained silent he refused to give his name he to driving a stolen minivan he was asked if he knew the defendant oscar flautist he was asked if he was a member of the latin king street gang he was asked if he was that i'm sorry if the two six and latin came gangs ground war in two thousand and seven he was asked if he  with the defense attorney and investigator in the case so it's your position that those questions in and of themselves prejudiced the defendant because they were getting their version of facts out without him responding you know absolutely your honor it also created the implication that the c s had something to hide or that the defense had something to hide because they were they also they objected to every single one of those questions is it automatic here for the state to call right he never said any direct current and wouldn't the state have to ask some of those questions in order to get a contempt charge against the witness mistresses i think in this case the state would have been able to get a conte when he refused to even be sworn under oath to serve as a witness but nothing more than i mean it's quite clear that he's not going to be answering questions if any questions are permissible it's you know could you give us your name or attorney is that how does it in any way suggest he was involved in a crime with the defendant here well if he's talking to defense counsel an investigator it sounds like he's certainly working with the defense and if he's working with the defense then there's something asked two more leading questions about you know did you have a conversation did you have a conversation about such and such with no hook here with the defendant so and so he answered those by saying he was going to refuse to respond and then remained mute for the third question today he says no well you know i've been over there and you don't believe me you know you believe me when it suits your benefits i would like to plead the fifth ok have you had conversations with the defended well resident of the jail i think if it is there's something incriminating about the conversations you may have had with a fan inc the the court found that that just wasn't enough that this was a rather remarkable thing to have happened and the jury just instruction is just not enough to cure the impact of such a weird thing happening in front of them about using the photo with if you have been it's off the record for some unknown reason there is a side bar there there is a record made possibly a little bit later in which the prosecutor in which there is a back and forth about why the judge lets the prosecution add the why did she based on the prosecution's argument is that defense counsel had opened the door to it somehow by asking a detective about whether he investigated another tip about another individual right was there a suggestion to the jury that he didn't really investigate this at all not that he didn't investigate it at all simply that he he tapered off in his investigation of the other tip that he had and and focused on an answer inside but it was a court allowing some minimal discussion about the caption because it was remitting the state to explain what exactly did it take i don't think that is enough to allow in a caption that your honour's previously held were highly prejudicial and should not have been admitted and support the indicated ruling was if you're it if the mission she might have said i don't recall her exact result isn't that what we have do believe they showed that photograph touring with its caption during closing argument i don't i did that compared to the jury i'm sorry your honor i don't know if you think that the jury saw the caption or something during closing say i don't recall i'm sorry ok i well out of time so i think you good morning in this case regarding calling with c s as a witness the state properly did that as i understand it kate and he had been granted use immunity and were immunity is granted the state has the right to demand and expect testimony from a witness even under warriors indicated that he was they said it for him and he basically didn't answer any questions isn't there with him you know it's not in this case the prosecutor said it as an officer of the court that he did not know what the c s would say when he took the questions in order to proceed on a contempt scene it was necessary to ask the questions that they did in order to establish the relevance of this witness and as you indicated to determine the extent of the or the scope of the contempt charges and solicitor to go with that or we concerned with whether or not the right ross examination was the right to cross examination that there was no confrontation clause violation no no problem with that because the on the attorney that the prosecuting attorney had the right to call and ask those questions the questions that he asked were very preliminary they were a set up a luminary questions not prejudicial there were four questions that the prosecutor asked regarding the c s this involvement with the crime not the defendant's involvement with the crime when he determined that those questions those type of questions would be answered he asked just three questions about gangs not the defendants involvement in gangs but mysie is involvement in gangs and we realized he wouldn't answer those questions he stopped that questions related to those captions we never pointed out the redactions at all to any of the witnesses but then i cross examination the defense attorney's questions made it seem like there was a witch hunt against this particular defendant made it seem like there was the same tip against the investigator just chose to pursue the defendant and that wasn't true obviously the police had more information against this defendant and in those situations is the state just supposed to sit back and allow the defense attorney to create an inference that both parties know was  true well let's talk about that information now the defendant has argued that there was inadmissible hearsay that was introduced in two different forms in this case one was through the brother of the victim himself right correct and antonio testified that another person told him that little rowdy was bragging about killing rob ok their times that the rally who turns out to be the defendant was bragging about killing victor yes so how can you say you didn't really use it when they heard it multiple times because our state's attorney in this case told the jury during closing argument exactly how to use it and when i say that the state never used it to show that the defend it was actually bragging about the murder it's because in closing argument or prosecutor said how do we get here they talked about angel rodriguez struck the jury on law and every case in every case isn't the judge the one that instructs the jury there's nothing that the lawyer said that amounts to evidence or instruction it's just their their version of but what  or the judge will tell you this the state's attorneys typically do go over a lot that applies to the case yeah your lawyer instructed on this all not from the judge but what you have from and that's because the defense here i guess to be answered my question is the assistant state the first person that mentioned this was the defense in his closing argument and then and were bottle the state responded to them and i think that is an important very logical let's go back just briefly to this idea about state when the course of investigation exception has been a law and also you know effect on the listener but but just to the police officer aren't there are a number of cases that say that it's not appropriate to go into the content of the power station but just simply what the officer did after speaking to someone who then above been done in this case there's case law that says very clearly also that the content of the conversation is allowed when it's necessary and important to explain the course of investigation and without that testimony in this case antonio's steps wouldn't have made sense and the detectives testimony wouldn't have made sense it would have appeared like it was some haphazard illogical irrational investigat that in a lot of cases they simply done by saying i spoke to antonio and then i retrieved a photograph of a little rowdy who it turned out to be was asking for it in some cases i have been done that way here because in this case they needed that information to tie it all together to just help a little read to just have antonio go looking in your book for no apparent reason to just have antonio going on my space with his cousins account that doesn't make any sense either how does the detective get in possession of these in my space but i was raw that he added to that he was bragging to that also painting and again not for the truth of the matter asserted but to show the course of the investigation why were these two individuals put in a lineup not just be told so there was no objection to him testifying about my past but the defendant did object as far as the defendant yes those objections were made but the same it was used for the same than at least that was the that's the argument but again the state during closing argument very clearly said why do we have these pictures and if i can what he says in response to the defense argument they talked about enjoy right great guests and the rumors and all the things the importance of that and they have evidence is it shows how we get to my space how we get to these photographs well that's one thing you can say ok the victim's photograph is on his my space page is on  why does the state have to go to the third rail bringing in the captions i'm not understanding that this case is already been reversed based on that exact issue and yet they do it again because the state has the duty to portray the truth and the defense violated that they asked questions that raised an inference that wasn't true they raised the inference that the police had the same information the same tip against both of those suspects and just chose to pursue the defendant and that sign to the defendant and disrespected the land kings and defendant opened fire again absolutely from that evidence it's a fair inference that the defendant teamed up with another land king drove through to six territory and was looking for a rival gang members to kill they never shot  the four women who were witnesses on the street they absolutely targeted members of the two sets so those comments were all fair inferences based on the evidence in the case well and in addition to that though there was no objection to any of these there any other questions or no other questions all right thank you that i was in that case there was no grant of use immunity so the prosecution should not have been asking those questions in the first instance isn't that the case isn't that the scenario that we envision where it may be i don't know simply start asking questions of this nature when there has been no grant of immunity this is i mean if the  court in this here nevertheless said that it was error to have called this witness knowing that he was not going to cooperate and to ask questions that that tempted to you know introduce the state's theory of the case that they tried to incriminate the  asking leading questions that at you know suggests or imply the theory of the state's case that way and that that individual implicated the defendant himself in the crime that's an issue that young members went into opposing game here henri and one was driving and one was shooting and they shot at one young man first and then continued and then they shot two other young men and those men all happened to be rightful members they all happened to be rival gang members of this state and the women the young women or the girls i'm not certain their can you say there was no target he actually took the gun and shot the person who was only a few feet from him so he said that's not a market i mean i'm simply saying that the state introduced zero evidence of motive so calling it a kill team it might have been a spur of the moment thing that disrespected me aren't there cases all over the that the courts that indicate that people get shot for doing just that very thing against respect flashing on one's yang member to another i mean it's senseless and it makes no sense but isn't that don't we read about that in cases that people are get fat all the time because they're not in the same gang sure yeah  i don't think that so that actually is a motive it's just that it's a very senseless senseless and you know unfathomable motive motive for both or all of us to understand so i just don't think it's important that the state didn't introduce any specific motive in regard to this case other than you know a flash the gang sign that that doesn't support hunting and shocking for victims it doesn't support the state in closing in rebuttal closing argument discussing their utterly fabricated idea protect at words not record the only use of the english language that i recall that in this record is you need to look out for some that was one of the questions asked of him but closing  opened up with you see what happened in this courtroom when leonardo came out and face this defendant is nothing unusual it happens frequently sadly circumstances change in the inner came out and said he didn't remember maybe willing to do the right thing when fred glove when the blood was fresh but if he changed his mind about telling the truth and doing the right thing ok there's no word here or he that someone threatened him or that he was going to be hurt alternate explanation for why gonzalez would have recanted his identification and i just want to make that point too is that that's all the state's case rests on is a single recanted identification those four witnesses the say just mentioned none of them identif oscar all of them gave descriptions all of them said yes i would be able to identify the passenger the shooter in that minivan that were just wasn't they all said one of the two women or at least to say that they would you know they all said that they would be able to recognize one woman said she absolutely would be able to recognize him none of them picked her out of a photo array or a live lineup so all of the improper evidence that came in in this case the improper hearsay the leading