that conjecture led to a deeply flawed eyewitness identification that was based more on public rumor than on any facts of the case or actual recollection of the offender not only did the state thereby feel the prove lafayette guilty beyond a reasonable doubt in its effort to do so it introduced multiple reversible evidentiary errors it destroyed potentially exculpatory evidence and it permitted lafayette to unknowingly forego his for jury trial rights for all of these reasons obvious conviction cannot introduced text messages that had no foundation contain two levels of inadmissible hearsay and did all of this country to an on the record agreement of the state and the court had acknowledged prior to lafayette opening his case  and the state offered evolving justifications for what was to be exhibit fifty saying at first that this would demonstrate contacts between the on and lafayette later saying that although the four records had to be produced not all of those  put before the juries eyes before finally emphasizing in closing arguments that the jury would receive the full phone records contained in an exhibit fifty that included these text messages the only was there no foundation to establish that lafayette had anything to do with the sending or receiving these text messages they contain true levels of inadmissible hearsay and unknown declarant asserting that further unknown to clarence had heard rumors that lafayette had something to do with a white  getting killed in late october two thousand and nine this was all introduced in contrast to a promise the state had made on the record prior to trial but the state in the court until the morning lafayette opened his case assured him that the jury was never going to see these text messages the introduction of them violated lafayette six and then it writes this was not a case where the evidence was otherwise strong and soft and in fact the evidence was so weak that the  failed to prove him guilty guilty beyond a reasonable doubt the only eyewitness to the crime randall smalling was unable to identify lafayette two days later in a photo right he admitted repeatedly that he didn't see the offender space above the car not only failed to prove offit guilty beyond a reasonable doubt but in that selous effort to do so introduce these text messages that prejudice lafayette's constitutional rights from require rehearsal to speak then when further it undermined lafayette's due process right of cases that requires preservation of evidence essential to an terminated of the up in the case because the same essential claim was raised below all the facts are of record this court can still address both the bad faith argument and the newbery argument under the hydrant case now as for the state's claim that somehow police procedures could trump lafayette's constitutional rights that simply doesn't hold police procedures to stop and frisk suspects can't from constitutional rights for for instance in the one case cited in the briefs police procedures cannot allow the officers to delete cell phone video of the battery rast simply because that's according to their normal process counsel what is the evidence to that lafayette requested that all tangible objects the prosecution intends to use a trial be preserved in december of two thousand  evidence pointing to the true identity of the offender here no evidence collector is perfect there could have been further fingerprints collected from the exteriors or interior of the car that could have been further biological evidence pointing to the true identity of the offender and again the evidence the state parks on repeatedly here the fingerprints taken from the car door not only did they repeatedly emphasized this they shifted the burden during rebuttal closing argument by focusing on the fact that had not produced evidence he was previously in the car who counts i know that the request was to preserve both to not destroy any tangible objects but the vehicle wasn't specifically mentioned is that right in the discovery last that's correct was it in fact it is a tangible object time understand that in the end it was eleven months before the vehicle was crashed right that's also correct so i'm still struggling to identify what in the streets bad things this discovery request was sufficient to trigger to a reasonably prudent officer reasonably prudent prosecutor's office the knowledge that lafayette wanted to inspect this vehicle impact he had he discovered the destruction of the vehicle after his inspector attempted to obtain so is your position that if a request is made to not destroy something and it lafayette's inspection for an inspection now obvious constitutional rights under the illinois constitution were also also violated by the destruction of this car and that does not require that under the newbery case evidence that's essential to fisher versus illinois in the u s supreme court but the illinois supreme court has not seen fit to reverse it furthermore other state courts outside of illinois have also seen to preserve a similar rule under similar circumstances the card here is equally important to the prosecution it is the four crumb of their argument to the jury that lafayette left fingerprints on the door handle that the offender also touch i independent inspection of the car producing other fingerprints or other biological evidence that would have pointed to the identity of the true offender and furthermore when the state is arguing about the fingerprints again and again it goes beyond simply noting that these point towards lafayette it suggests that lafayette should have shown he was in the car sometime in the previous six months bought it made the argument based upon expert testimony at trial that this fingerprint could have been left any time in the previous six months and this is a cousin  say there was no evidence that he ever had her or that takes the state's statement a bit out of context the state remarks that while he has argued they could have left this fingerprint sometime in the prior six months but there is no evidence he was in the eric cannot invite a shifting of the burden of replace it because it suggests to the jury when taken in context lafayette says he may have made this mark some time in the prior six months but there's no evidence that he did unwritten waiver that relied entirely upon defense counsel to explain all the strategic reasons that buffett might choose a jury of twelve versus a but yury of six we can simply assume the off the bat was never had a jury trial previously understands all the strategy that might be involved here all the differences in nuances that are so important for defendant to grasp there's no proof buffett acquiesced to a jury of less than six where there is no proof that he understood the right edition you cannot ac something you do not understand and lafayette needed to know that it's more difficult perjury of twelve to reach a verdict that a jury of twelve is more likely to take a prod and diverse swath of the community and enhance its deliberations which is so important  what the math to say suggests is that we cannot simply rely upon defense counsel to explain the right issue and that's what the trial court did they took lafayette's word that he spoke in the council and councils answered any questions you may have as sufficient to explain all the rights issues and that's about an explanation of the role of the jury in general even before you get to the distinctions between twelve and six because this is an analogous situation the math used this amounted to rob him shoots of thirty five hundred dollars in the state contradictorily argues that it needs these statements from davey on to prove why he has failed yet if you already proved his identity is the offender so clearly as to establish a prima fashioned case of conspiracy we know in the duckworth case that a mere familial relationship between defendant and another one on the scene of the crime does not alone establish a prima fasher case of conspiracy is the cell phone call as the parties are driving to elmwood park where he discusses the amount discusses who has the money with an unidentified third party which establishes a plan stab oh absolutely and there's no reason to doubt that these two are close cousins that they would have been in contact previously furthermore they can't do any you know we rarely have direct evidence of a conspiracy you don't have people saying yes we agreed to do this that's rare and so we have to look at him princes to be drawn from the evidence and wow what you're sick suggesting is it in print isn't it for the so so much a slam dunk was not sufficient to establish that claim the passer case and thus davey on statements were improperly admitted requiring a reversal as well if there are no further questions from the court murder in addition to the positive in deprecation there was defendant connection to defend it they were cousins to call each other brother there were many calls and texts around the time  nt bought shotgun shells from a coworker a month prior to the offense so all that evidence was presented to the jury and the jury found defendant guilty as for the six per defense counsel only objection was foundation at this point the prosecutor had already made the statement in the coke in the motion in limine the hearing about the jury not not getting to see the text messages so defense counsel could have made that objection at this time but did not subsequently when the court was ruling on whether the exhibit would go back to the jury defense counsel added that i have jackson's on the grounds of hearsay an and then we're has a two to rule on the issue because the trial court didn't have the opportunity to address it in potentially corrected but that's not the case here right now i do believe that they did messages would never be seen by the jury the court actually ruled on this and found that the state had not made any promises that it was offhand or jerk response to a statement made by defense counsel in addressing the independent evidence the conspiracy defense counsel when pretty state's evidence and that the jury's never going to see these text messages and then when making her argument the prosecutor stated in this case we plan on presenting and i know the text messages are not going to come in and the court found that this was an offhand remark or jerk response not in agreement by the parties as for the foundation of the text messages they were as being sent to or from defend it or someone on his behalf the price an employee testified that the cell number was assigned to the account bearing defend its name and detective bransford testified and gave that phone i think it might have been him a girlfriend or something but i'm not positive it was or is the best analogy about who said no no it was no testimony it was not argued before the jury if there was no testimony report regarding shows over off a lack of contact between d v r and defendants except for that five text messages during the relevant are doing something together but the phone records might be you know the log of calls back and forth and i think defense counsel basically conceded she didn't have any objection if that was just by walking off she was talking specifically and he expresses surprise you know why you know like not me there's nothing incriminating on his part and it gets anti bodies jury there are people on the street have already heard that lafayette being knowledgeable of it in saying he knew who it came from you basically the defendant confessed yeah we we sent these messages in that's true it came from so on so i mean we don't have that here here i don't i i would argue that this this was a minimum minimal part of the evidence in this case we had a positive identification by defendant and i'm friend on the back  door had the d n a possible d n a on the on the backpack we had the text messages back and forth apart from the statement by the unknown person and we had him getting shot and shell a month before so even if there was an error in this one little text message that was not highlighted to the jury in the evidence or during closing arguments the outcome would not rule there was adequate evidence of conspiracy in this case co defendant dave young received text messages from a cell phone registered to defend it right before defendant right ripped open the back door of the car defend opening the car door and wrestling with shoots over the bag of money after dave drove to the patient to the location where the drug deal was to occur with evidence of conspiracy and then while defendant was wrestling with shoots for the bag of money codefendant pointed backpack there is plenty of evidence of conspiracy in this case and that that evidence was not admitted in error in addition all the information in the conversation including where they were going that they were conducting a drug deal and seventeen fingerprint cards with multiple fingerprints on each card and d n a which was identified as of the victims was probably properly researched and made available to defend it but he did not retest anything or asked for  you know expert or bring experts forward but what about opposing counsel's point that this precluded the defendant from testing to see if there were really other witnesses i should say this one might be to determine objects is not sufficient i think that's one of the considerations and that this court should look at is whether he made a specific request for the car and he did not in this case that's  just a few points all focused primarily on the text messages the state wants to hard on these messages as proof of lafayette skill that they offer no substantive response to the double hearsay that these messages contain a forfeit issue so just post point a point of volume twenty eight page three fifty four of the record where the fence counsel notes as identified there are text messages within those phone records and i believe those are hearsay to the extent that there was any other failing defense counsel to raise all of the arguments against these text messages that's attributable to the fact that both the state and the court assured her prior to opening her case that these messages were going to be put before the jury's eyes or lying on those assurances she didn't feel the need to explain all the blatant errors in admitting such messages and again this is the same essential claim that was raised below all facts are developed this court can review the issue based on the record that we have to justice post point there's no proof of who sent these messages that was missing foundation and it also establishes two layers of hearsay the business records exception only applies to establishing that these exhibit fifty is in fact what the employees of the cell phone company reported to be does not cover the unknown declarant asserting what other unknown to clarence have told him or her there is absolutely no proof the trial who this declarant was there's no suggestion that it could have been a girlfriend nothing at trial establishes any relevance to these text messages and that really distinguishes this case from davi someone sending messages actually wants to acquire drugs here there's no justification offered by the state for the content of these messages but you're a good only take them for the truth that they asserted that buffy yet had something to do with this crime and this is not harmless beyond a reasonable doubt in the extreme a close case again the other evidence against hof yet including a deeply flawed eyewitness identification a single fingerprint could've been left anytime in the prior six months d n a evidence on a backpack that was one of three different profiles found on the backpack and would have been found in one of four black men no d n a was found in the victim's fingerprints that would have pointed to  lafayette this was an extremely close case and these text messages were prejudicial and require reversal one quick note as well regarding the destruction of the car again this discovery quest for all tangible items w specific enough to notify a reasonably proven officer a reasonably prudent prosecutor of the need to not destroy a vehicle before lafayette has the opportunity to inspect it and then go at least apartment's actions suggest that they understood just how important this car was they had it towed to their headquarters they had it examined thoroughly for evidence and they kept it for over a year but they destroyed it before lafayette had a chance to examine it and in so doing committed reversible error there are no further question