substantive evidence of guilt yes here the prosecutor informed the juries during opening statements that mr pickett never asked why he was being detained and when he was arrested he counsel immediately objection and then made an oral motion for a mistrial based on the properties income profit excuse me improper commentary but here the prosecutor said that he had looked into this before trial and that he based his his decision to use this evidence in this way that and i quote the use of post arrest silence does not violate a defendant's right to silence where miranda warnings have not been provided and that is quoting from the crap to spout however when reading the practice volume  context it is it is readily clear that these cases we're dealing with where the the defendant of the valence himself to impeachment on cross examination so therefore the trial court then errored and agreeing with the prosecutor that it was familiar with givens and then found that case the state's representation of givens distinguishable and in a case where mr pickett never takes it up testified at trial this you know and just as this court stated in people honors the jury instructions that opening statements are not evidence do not cure the president prep the prejudice in this case because the court fight over ruling councils objection signal to the jury from the outset that this was him that this was proper to make an inference of guilt on that basis he and then the prosecutor repeatedly argued this throughout trial during while under active examination of two police officers and that during closing arguments so here the prosecutor which it can and to it to a certain degree was a misstatement up a lot because it couldn't be used in this way you know impinged on mr pinkus right to not testify on his own behalf because the jury could  testify because and i quote he said if it's his argument that mr pickett had nothing to do with it and surely you would ask what's going on so that is implicitly the comment on the failure to testify that is a result of this initial occurred during that the hearing on the motion for mistrial and again process the prosecutor although he did comment that mr pickett therefore had a right to remain silent if anything this confuse the jury because then why would his right the by w because a cause of violation of mr pitts due process rights in addition they haven't in this case was closely balance this the state's case rested almost entirely on a single officer were tempted to make the initial stop and he and mr pickett was equally possible that mr pickett was not aware that the officer was trying to pull him over he did was wearing a helmet a face mask and earplugs in addition to the fact that a harley davidson was next to him which if that evidence was a deuce that is louder than a normal motorcycle throughout the trial because a case state your getting engaged in a pattern of misconduct and there was no reasonable trial stare at you for counsel to failure to continue his objections or to look into those cases to make to renew as objections or not and point out to the court that over ruled the objection of counsel so the state is continuing on in conformity with the ruling they received from the court well your honor because the court is also charged with having the presumption is that the court knows the law and the purport here did say it knew the law on it was familiar the case but it was also saying it was familiar with the case based on the prosecutor's representation of that case at the time and the prosecutor had an equal duty to the court so it would be it would be our or our argument that had the prosecutor not made these arguments and when the been a juice in this way so the initial the initial reason this came up is through the prosecutor i don't disagree with your explanation but we are seeing a pattern of cases where those phrases are use prosecutorial misconduct which is not quite the same as hiding out of an answer the kinds of things where that appellation would be readily available so i'm wondering if you know we sometimes see and experience prosecutors we sometimes see in experience defense lawyers always the seasons one seasoned ones that still make mistakes and i'm wondering where that phrase is perhaps an unfortunate turn of phrase to characterize mistakes that prosecutors make  which judges sometimes permit them to make as misconduct that seems a harsher term and i'm not criticizing you for it we find some of the cases yes your honor and in fact the supreme court the united states has said that you know the error here is a based and if the error is based on denial of the fairness of the trial it is not based on the culpability of the prosecutor so in this case i would submit here that i'm going under these facts if it was you know it was if it wasn't for the misconduct it was indeed reckless because these cases were clearly distinguishable and a clear reading of the prosecutor went beyond looking at the illinois practice and actually perhaps maybe read those cases because i think it's reasonable dictionary does define a prosecutor's improper or illegal act or even a failure to act in especially involving an attempt to avoid require disclosure or to persuade the jury to be wrongly convicted or  punishment i mean that's that that would be the definition so it's not necessarily a you know even if it was a prosecutor's misunderstanding of the law be due to inexperience you know it was reckless in this case and the holding of the cases he relied on clearly limit their holdings instances of impeachment so that's how i respond that's a pretty good to have sir i did i did mean to step into your a question justice so why did you have something for no layers of protection on his head in addition to the the loudness of the motorcycles it is not implausible that he didn't actually hear because again it's three layers on his head which is tom and lee worn by people who in the evidence was a deuce of that officer was pulled in the side of the road but in order to initiate a stop there's a number of reasons why a light could be on the side of the road in order to fish the initiate the stop that the police officer would have to activate a siren now wait a minute i thought the police officer immediately and continued for a mile so again it comes to our take is that that the case came down to whether mr pickett in fact heard and actually understood that police officers were trying to initiate honor in the alternative it would be our contention that this right rose to nd prong plain error because this was not just an isolated comment in this case this was something that the prosecutor relied on throughout and created an inference of guilt based on my client side wants so this you know i and while recognizing there are cases which found that harmless error in cases where you know this was just a single comment but there are no cases that i'm aware of where the prosecutor threw up from from the beginning of the trial throughout the trial and then during closing arguments relied on this as evidence of guilt and that and that's what ultimately happened here so and the man in this case i would i would say even if this court does not find that the evidence was postlude balance that this was this was it amounts to nd plot promptly error because it did go to a fundamental denial of his rights miss patches make sure i'm clear on on the facts here my understanding is that your position is we do need to be able to confirm that your client was aware that the police were trying to stop him whether that be because he saw lights or because he heard a siren is that accurate that's accurate your manner and so the way they were travelling there were three motorcycles correct that's correct and your client was in the front and he had no mirrors on his motorcycle is that right that's correct and so at what point do we know that he actually saw lights at every beginning missed we don't actually your honor because there was no testimony that mr pickett actually saw the lights when the police officer turned on his lights that he actually indeed saw them so we actually don't know and so then you also have another officer later down the road who's on the side of the road with lights on correct correct but that officer didn't flag down the motorcycles or give you any indication that hey these lights are for you that seems to be your argument i mean in our part no your honor it would be that but the argument is also that you know as you say the state could have proven guilty but because because the state introduced silence as e is part of the prejudice analysis in this case definition of prosecutorial misconduct from blacks even as he was reading it talks about either the usual traditional prosecutorial misconduct or being brady violation or knowingly by the prosecutor in this case of course justice connect or as justice holder white pointed out the prosecutor this was this was settled in opening statements so the prosecutor was not  committing misconduct by relying upon the trial court's decision about the fact that he may have misled the trial court regarding this case which i think is easily distinguish i i would i would submit that the given it's not it's the facts of that case are easily distinguishable from this one because the defendant testified in that case however the holding was the post arrest armlets in that case was relevant totality of the circumstances in this case most of the cases cited by that than that and are distinguishable from the fact that this they were commenting upon a defend its refusal to answer questions after arrest police station or while in clear custody this within the very brief moments that deputy frazier st encounters the defendant and we also have to realize that the whole theory of defen cases absurd as it is with that he didn't contest that he was the one on the motorcycle he just contested that he didn't know he was being pursued so obviously this was extremely probative and there the prejudice as i'll get to later the evidence was overwhelming so that the prejudice to defendant was the balancing test goes in favor of the state here we also remember that this was a motion for mistrial the standard of review is there for abus in that case was admissible so i would argue that the there was no intention to seal yes i'm wondering to me it's very significant that in this case the defendant did not decided i'm going to hold onto you i'm going to rely upon my right to remain silent and the fact that the prosecutor didn't go into this in the court allows it in fails to sustain the objection when that happens that seems quite significant well again i don't think the defendant maintaining his right to remain silent i don't think and like i said most of the cases involve the questioning process at the at the at the jail or in a police car or something like that not in the very few brief instances basically defendants lack of words work wasn't even the the main thing here it was way get into the fact that the defendant was signed in one of the jury can have a jury infer from that that oh well this guy's guilty  found that it was relevant in that case because it tended to prove the charges against him and therefore six truly probative in this case i would argue as well but even assuming the trial court error and in  denying this motion for mistrial or or admitting this evidence the any error was harmless beyond reasonable doubt to the overwhelming evidence defendant's theory in this case was simply absurd he was followed for thirteen miles by a police officer and even assuming he's legally dead although i think everyone knows how loud police sirens are you can hear blocks away inside your own house the police officer also has overhead lights going and everyone i think knows how strong these moving red and blue overhead lights are and how they reflect off any surface that can be reflected so i think it's absurd even from the point of it that was the only evidence the defendant just simply didn't know simply buried his head in the sand and closed his eyes and didn't know he was being followed that's already ridiculous however there was plenty more evidence to suggest defendant knew he was being followed there was evidence of him and the other two motorcycles increasing their speed almost instantly to about ninety miles an hour more than twice the speed limit where they were to pass a car in a very brief window when another car was coming in other words preventing the police officer from from also passing that car until later this can obviously be seen as an evasive maneuver and it i would submit is the only reasonable inference to make for the defendant and his  behind them for thirty miles she but she was in front of defendants defendants motorcycle when she operated her overhead lights to assume that from the top end of the road at that at that time yes but i mean so if someone in to finish position to ok will assume that he didn't know at that point that someone behind him had his lights on for thirty miles depends position they're saying another  he didn't have to turn around to see officer hobbs lights at that point any reasonable person and then the position would at least check out of surroundings and find out why this police officer on the side of the road also have their lights o that you rarely have an opportunity to pass a vehicle and then there is an opportunity for someone else as it usually exactly what you describe where you oh i have a chance to get around this car in front of me i increase my speed and then and to do it at such an increased rate rapid rate of speed again double the speed limit i suggest that reasonable inference to make for matt was that they were obviously trying to get away from a police officer this been falling for miles  then we have the other police officer also has her overhead lights on still oblivious defendant at that point he goes into the wal mart parking lot apparently almost hits frank smith or at least it gets close enough the frenchman realized something's wrong thinks his behavior thinks this person is going fast enough that he calls a friend who's a police officer and taxes family up and leaves wal mart and he had no reason to suspect that this was  this motorcycle trace was happening before happening before it got to wal mart so defend it comes in the wal mart parking lot at her and unreasonable rate of speed then suspiciously goes back to the loading dock circles around there for a while and ends up parking in the garden section behind the stack of mulch this is the only reasonable inference to make from all of this is that defendant was clearly trying to hide from the police officer that had been chasing him for the last thirty miles and even without any evidence of how he acted at the time his arrest the outcome of the proceedings clearly would not have been any different in this case and it's well settled  even harmless error applies to constitutional issues so even assuming this was some sort of th amendment due process issue and not just an illinois evidentiary issue are most errors still maclise and it was clearly harmless beyond a reasonable doubt misconduct unless a prosecutor's actions suggest willing or intentional errors more deserving of such an invective or majority of term i see the prosecutorial misconduct in almost every case i have now in the past six months and here like i said prosecute him simply following the trial court's rulings as for the other alleged prosecutorial misconduct it was when the prosecutor talked about that the jury olives and and we all live in pike county in context he's clearly talking about the two lane roads that we are talked about on to a country road you have to pass in the oncoming traffic lane and that's clearly what he was talking about when he just was discussing pike county was the fact that everybody knew that these were all roads that's the way you pass people so that was had nothing to do with creating an us versus them mentality and the overwhelming evidence also rejects any ineffective ineffective assistance argument i would also submit that counsels performance was an objective leon reasonable and failing to continue to object he made the motion for mistrial heard the trial court's ruling it was not objectively unreasonable for  to make objections that he knew were going to get overruled that would just look bad in the eyes the jury he raised this issue and post trial motions as well so there was no objective way unreasonable performance by counsel here  and there was no prejudice because the evidence was overwhelming so i would argue that due to the overwhelming evidence both of these arguments must fail and there was no  met is that substantive evidence of guilt but it's i mean there is no case cited and certainly in illinois that condones the used aside from this people versus the will hand s but of course that's that's a distinguishable case because in that case it actually was relevant to that fence and it was relevant as an admission and however it did not say mention the use of substantive evidence of guilt in all situations so and again as justice holder white pointed out the diff you know the defendant did testify in that case and then the court did ultimately find that the evidence was overwhelming whereas here that that that isn't the the same and as also just there was holder why pointed out this case the air in this case was quite writes and and here in terms of counsel relied heavily on the closely nature of the closely balancing out evidence and terms of this count comments that he was absolutely unaware that that is rebutted by the record this is about the essence of the falsely balanced hates being that each feature both the state's theory and the defense theory were equally possible and in terms of counsel commenting on the loudness of the motorcycles themself excuse me the the loudness of a police siren while equally loud are three motorcycles and in addition to wearing the normal repertoire of of of a motorcyclist of three layers of which you know that that is there was testimony that was common so that is equally and it's equally possible in this case and in terms of how the defendant was trying to hide by parking behind mulch you know he obviously did a very bad job of was something earplugs headphones something that that looked like that but i don't know if they were i don't think they were ultimately recovered not into and into evidence that's what i thought ok well thank you council will take this matter under advisement we the readiness of the next