as they relate to discovery and continuance which is an essential part of our appeal concern the state's re gotten so indeed failure to tell defense counsel in advance of trial that one into reasonable doubt witnesses in fact it identified defendant during a photo spread the state learned about this approximately two to three months before trial and when challenged you know open court the simple statement from the prosecutor was we thought he would figure it out or words to that effect the state proffered the information to defense counsel immediately in advance of jury selection this was a special but i are called by the circuit court because the trial and the end to speedy trial time was some twelve to fourteen days it's a turned out it was ten days having said that i think the we believe the legal questions are that's the state have the duty the responsibility under our discovery rules to provide information whether it's in prior to trial so that defense counsel may prepare investigations so the answer is clearly yes we know that from our own authorities including people versus who testified during the trial within the trial that there were no additional reports made it was a verbal response to the assistant state's attorney who had asked two or three months before trial about the photo rape mix up and his response during the trial within the trial was it was our screw up we told the state's attorney that's all we know we did not make any additional reports had in fact identified defendant in the photo having said that the question becomes where defense counsel is actually surprise and i think it's fair to say was and i think the trial court along the way did find there was a discovery violation so we can assume that since the state has not assailed the circuit court's finding that there was a discovery and we have support for it in our brief and people versus the joy and people versus ripens both illinois supreme court decisions so if we take our facts trial just before jury selection prosecutor it buys his defense counsel for the first time oh by the way the witness you subpoenaed miss sandy she did identify your client in the photo indeed the police report support the defense version according to detective shepard as laid out in our brief when asked the question going the wrong with the police reports and the information with that have shown she did not identify defendant lead detective sheppard answer is yes so there's no question about it i'm very confused because i thought sheppard had a january sixteenth two thousand and eight supplemental report every plaque that handy identified the defendant the reason for the trial within the trial was that it was not until the day of trial where the if we take the record even under like months favorable to the state but i question whether when we're talking about a discovery violation where the state rule where the court ruled the state and in fact  discovery rules whether you take that in like most favorable to the defense or the state i suggest that sort of like most favorable to  continuance the west christine people versus walker which my opponent it's very fine grief that's not even in sight we're in our opening brief we talked about the illinois supreme court decision a people person responsibility of pointing out to the trial  by the way your honor you only asked two of the four demanding for thirty one be ques or you only asked three are you forgot to ask any strikes me that in our system of criminal we're talking about who was a white skinned african american who is doc's in dafur in america and i don't we know this because the pretrial discovery statement of miss thomas who was interviewed by the skinned black and back is as we know from defense counsel's opening statement with our contradiction and this record is one of the major methods that african where you can draw whatever inference you like but the fact of the matter is the trial court heard in saying that defense counsel under the facts of this case did not testified on direct after she's allegedly saw the defendant shoot the victim she told the jury i said i yelled out you won't get away with this one this one we're not making this up that's in the record defense counsel object that trial court declined to strike this one those that give rise to evidence inference of the separate quantum defendant has committed we believe the answer is yes to the court strike and you know if the court even comment on you know the court denied or at least didn't sustain the defense sometimes what message does that give the answer is that this defendant has committed other crimes therefore he's a bad person therefore you can send him to prison even though he may not be guilty of this we may not come out however comma this she ate the constitutional guarantees when they have the effect of allowing the guilty to go free davis first since washington five forty seven us at eight thirty six we are not asking that chair mel brown go free we are asking that he be given the opportunity to be tried in new where the trial would be interim hearings absent the jury during the first five days of trial so he would send the jury out maybe starting the third day of trial and in the afternoon they would have the min testimony i'm summarizing he and his sister detective said right across the table from him and they had the whole file went over it together the sister detective court please note claiming i am accurately what the circuit court judge found after the fourth day of these hearings those are the history of the circuit court judges were and important is the grand jury which happened a year before that same defense counsel for defendant this was all more than a year before jury selection even began the police only be granted if defendant bears the burden of proof him straits that he was prejudiced by the discovery violation in the trial court failed to eliminate prejudice so it seems that prejudice is required but even assuming that that he completely missed the three pieces of evidence that you had were his hand you could identify defendant and only have the mixed up photo arrays there were still two days to prepare before is opening statement even let alone hannity's examination which happened a week after that morning after the jury selection the first day of jury selection when this defense counsel allegedly found defend because she she was allowed to testify again but the court didn't find that it wasn't a finding the defense counsel i just learned of that i think it concerning their person there where definitive clearly failed to establish a case of purposeful discrimination based on the fact that where was african american there was no pattern as as a defense counsel mention like but if if we would suggest that the american legion is located here they are of champaign illinois which is the primarily african american neighborhood with that familiary just be commensurate with race well i think it's not clear in the record but there's also some evidence that that of the knowledge that that american legion hall is a defacto night club kind of place and i can't miss just mr ware's actually being there or three african americans maybe there'd be a stronger case but here there is one hand with a specific reason exclusive to him that he as for the other crimes testimony argument on this one was also forfeited the defendant didn't include this in his post or a motion assuming it is a portrait of though there was no error during direct examination as his  wouldn't get away with this but the state never pursued this as being other crimes testimony there was a there was an objection but it had nothing to do with other crimes testimony only had defense counsel we argued that this familiar with the x cheerier of the hall but the next day she bonded she responded that her office works occasionally with the prosecutor's office and she was insulting to suggest that the lack of pattern means there was a note babson related office here because you can't have a pattern when you have one so you have any difference in johnson versus california the united states and i have this said pages fourteen and fifteen in my reply brief i won't read it the court can consider the measure or standard of review what ever it may be is mixed is mix and in johnson versus california one twenty five supreme court at twenty four facts some of which are impossible to know any certainty that the challenge was more likely to better not the product of purposeful discrimination instead pages twenty one and twenty two of my our opening brief where the transcript is played i'm sorry twenty one twenty two and twenty three the transcript is set forth the say has never challenge any of it or suggested that we put in improper references and page twenty three on page twenty two at the bottom the court this morning asked when the friend and found out about it when trial when questioned by the circuit court the prosecutor said probably come up frankly come out last week when we were getting ready to trick or trial we thought he had figured that out i'm his only because it was all provided to him and it would seem so obvious to us we didn't see anything number one we're not talking about inculpatory or exculpatory because our discovery rules are not framed that way secondly if it was so darn obvious to the prosecutor why did they