the opening now these are the issues that are described in these arguments show critical errors by defense counsel they denied mr wagner his due process rights to a fair trial and to a fair amendment right to counsel now the record shows says that mr wagner was arrested in connection with a string of crimes in january fourth of two thousand and sixteen he was charged with only one of the counts of burglary i ived him into believing that he was not represented with respect to the remaining towns and of taine this statement illegally in violation of mr wagner's constitutional rights so was represented on all  counts he was only indicted on one count so he was only charged for the local burglary on january fourth however all of these crimes for connected the evidence that was obtained in the statement that was obtained from mr wagner w used against him for all counts and these were all counts that were put in the same indictment by the state now the state does not dispute the fact that these skaven that the statement obtained in violation of mr wagner's constitutional right and the state also does not dispute the fact that if the attorney defense counsel had moved to suppress the statement that the statement would have been suppressed suppress the statement and it was a fundamental misjudgment on counsel's part now this statement was used by the state as an admission it was used by the state to connect not commit the crime he simply says that he does not remember and it does not offer any alternative whereabouts suggesting that it could be used as an alibi so there was absolutely no reason a defense counsel not to move to suppress this tape and under the strickland test defense counsel's performance fell below objective standards now the second question is whether or not the statement was prejudicial and again i submit that it was without this statement this statement was necessary to put mr wagner at the scene of the crime the evidence in this case was circumstantial there were only videos there were no witnesses it was impossible to tell from the videos who the individual was who the perpetrator was no one could identify mr radnor from no proceeds from these burglaries were recovered from mr wagner there was no forensic evidence tying mr wagner to any of these crimes are mr wagner did not speak to anybody other than vanderbank about this incident and so really what we have here is circumstantial evidence that scant at best and we have an admission a statement that was used against that was that was obtained illegally and as a result mr wagner was fabulous so under the strickland test counsel was ineffective now compounding this er there was counsel's ineffectiveness again when counsel failed to object to statements to testimony i'm sorry to testimony that was given by witnesses regarding the contents of the videos this was the parking lot i'm not sure what harvey if it's a supermarket but it's a big parking lot where the stolen car is later found and he stated that the man for the picture in that video was wearing the he said it what he was where he could tell that he was wearing a car jacket now whether it was or was not i think that was for the jury to decide and i think that this testimony that was given invaded the province of the jury in determining whether in fact this was a  necessarily that familiar with this type of jacket so i mean without that i don't know how familiar the officer which was with your own right i don't know that testimony was never presented but  what i can say is your honour's can look for yourselves and see whether or not one what can tell what type of jacket it is from the video and and also to say that it was the same jack that the person in the high video was wearing was extremely prejudicial because in that particular video you really can't even see what the individual is wearing camo shirt contemporaneous objections each time testimony such as that is unfortunately your honor there was no objection to this testimony and that's why i am arguing that this was part of counsel's ineffectiveness in this case there was some objection to that time frame that some of the testimony stablish ing of what time these videos were taken but there was no objection with respect to the conclusions that these witnesses had come to  with respect to what was depicted on the video and i just asked for a follow up on that how could the witness officer mueller testify while viewing the video what could have counsel done to use the testimony of berger case the prosecutor i'm sorry can you repeat the question please well if the proper foundation is little ask a different question if the foundation is laid in the proper candidate prosecutor use this type of testimony with a lay witness to set up the scene to show or discuss what they didn't know about the area perhaps the height of the parking lot things of that nature i just want to get a sense of what you understand is how this type of testimony is used with you don't tom yes your honor and there are some types of testimony that are  admissible relevant and helpful to the jury how for example obviously there is testimony with regards to the option to authenticity of the of the exhibit and perhaps whether or not the camera was working properly or not there's also testimony for example if the witness is familiar with the space in the area and it is not necessarily clear from the video you know where the person is exactly with respect to other places you know that are shown in the video i think that that testimony is relevant but it's only relevant because it's helpful to the jury and the witness has some knowledge that is additional to what put the weight what the jury is viewing at the time and my position here is that if the judge that none of these witnesses were in a better position then the jury to evaluate this evidence and to make determinations that the officers made for th for example the witnesses that none of the witnesses were there the officers were not familiar with the area and the clothing that was recovered from m wagner was presented to the jury not just photographs but the actual jacket and the actual issues so the jury had an opportunity to really evaluate this evidence perhaps even longer because although none of the none of the witnesses said yes that is him i can tell there were two crucial questions here the first question was was it the same individual that perpetrated all of these crime and the second question is why as it was it mr wagner and how do we connect this crime to mr wagner the way that the evidence was connected to him was through this similarity of clothing  this is how they were able to identify mr wagner and this consisted of the entire this was the entire state case it was simply these connections that were made by these machine in that video you can't even tell what this person is wearing if it's a man or a woman all you can see is a sleeve and the video where there isn't be evidence more focused on damage on  them that's correct your honor however it was the testimony of the officers that the same suspect had committed all of these crimes and also even though i said i would not discuss argument three in thirty but it's the fact that miss is cloud came out of the of the instant replay also testified that she came out at seven thirty and the car was already gone so given that testimony mr wagner could not have stolen a car yet because the officers told the jury it's the same person in all of these videos they were able to convict them not only with regards to the criminal destruction of property but also with theory if the video is coming into evidence and the clothes are coming into evidence couldn't it be transferred or gee that the defense attorney did not object to understanding that they were both coming in any way you're almost jury there could have been some argument regarding what the limitations would be with respect to this testimony outside the presence of the jury and then once that was determined then there would have been some guidance as to what the other officers were testifying to because it's not just that one officer testified to this is that they were all in agreement and they all testified to this and whether we like it or not juries do give more conviction here in the state of illinois and a felony conviction of burglary conviction for maryland there was no evidence in the record in the state did not produce any evidence that would have allowed the court to determine whether the elements of the maryland burglary statute were the same or equivalent to a class two felony or above here in illinois now again counsel failed to object to this in this stupid well i'm fortunately your honor it does not even say what statue is is the one that was part of that burglary conviction in the p s i i there's not even that bit of evidence and i think that what's important here is dad i mean i agree that at some point somebody should be able to make this determination and that's why i'm asking that this  determination can be made but the issue here is that in order to sentence him to a twenty year sentence when the maximum sentence would have been seven years the court had to make that right if the cour conviction where would match the elements of a class two felony here in illinois there are several degrees of burglary in maryland without knowing which one it is we can't really tell whether that that's the case so i don't know if  i'm sure he was probably very upset and angry that he was going to be sentenced to twenty years for something that would only carry a seven year sentence yes i don't know that with his level of education or his sophistication that he would have been able to say well you know under the statute you're required to do this and you know in reality when i was convinced it was x y and z i do see that  himself cross examine each of the state's witnesses regarding what they saw on the videotape and use their answers affirmatively in his own defense so the defendant is now saying evidence that i known reasonable attorney would have take this approach to mistaken strategy cannot be ineffective assistance of a less than a mouse no representation at all and that's standard simply does not apply either with regard to the videotape or with regard to the in a statement to the police the law regarding videotape narration is that it's within the judge discretion of the tr been yes we this would be helpful some of these tapes particularly the parking lot tape you could put out so me telling you ok right here is what's happening you won't know what to look for on the video at trial he testified i parked way car here with this lady and we drink i lied wanted to the police waste mentioned drugs and that's what the police told me to say so time the frame of the current which while it does say i was that third madison it is in the nature of a alibi saying i was off doing drugs or somebody at the time all the clients were happy and could not have under that under paterson the it's questionable whether or not house would have succeeded in any kind of his prior statement the prior statement could come in both as impeachment and as a subset of evidence under some twenty five miles vs five one fifteen that it was prejudicial to the benefit in that it could only be considered as impeachment it could not be considered as something to that it's so that the horror so that the harm is still there convicted of the felony in maryland so that that that fourth one that would not apply as a felony in the illinois on the face of the record that would not said that he had lied about meeting up with a friend using drugs he said he did not remember parking at the height of the parking lot and he claimed that it was not him on that  know it was not similar look at all he said that he had taken his car that he had gone to sums to a cemetery i believe that he was drunk that he he had dropped off his daughter at her grandmother's then had gone to the cemetery and then after that he had gone home and parked just car and that he was at home so if the testimony was very different he never he said he denied bad he walked out of his car after he had parked in a high harvey parking lot and then walk north towards a kmart which was specifically what was depicted on the video he said that he wrote what the officer told him to write which was what was apparently that the officer came to him told him i can talk to you about these three other matters because you haven't been charged read him his miranda rights your recollection was also right that mr wagner actually did request an attorney at that time but i would and i know and the been appointed miranda warnings are not sufficient to protect the defendant against six and i mean violations and this is a different case from paterson because in patterson counsel had not been appointed yet it was the defendant ha simply been indicted at that point here is very different and i and i submit that miranda warnings were not sufficient here to protect the president because counsel had already been appointed and he was misled on one page on one case which was connected to these him questions about the murder and because somehow there is some connection made even if it's a fake connection i obtain statements that i then used against him in his burglary case they didn't this statement after he says he wants an attorney and then changes his mind and after being again told by the officer wait a minute i can't talk to you anymore or yes for war i'm not sure that the officer ever said that to him or that it was even a stablish don't know that question asked but i do want to make the point that here miranda warnings were not sufficient because the detective had already made a determination here that it was the same suspect more over the statement is with respect to all of these crimes  cause the parking lot the high the parking lot was very specific to the time frame that connected all of these crimes to gether so these were charges that were closely related that were closely related they were part of the same indictment what that had number it i'm a little bit confused that was the testimony at trial is that what you're referring to not that was that that was what he said he didn't say that to the police all that he said to the police was i parked my car at this high the parking lot walk north towards kmart smoke but i had my friends and we went there and i remember all i remember is waking up at a motel room and being seen i don't remember anything about that was the statement that  verse rivero the court made a very specific distinction between what your honor mentioned which is is this is this about when that crime occurred or what the nature and elements of these crimes are protests so i thank you for your attention