to messages that he gave to her in which she allegedly apologized my brother and said that he should know that those messages were intended to be confidential as they are part of  series of messages in which he's also begging to come back for her to forgive him so these messages were intended to be confidential the two were married and therefore they were inadmissible under the marital  the purpose of the marital privilege is to further marital harmony and to promote communication between the spouse and that's what we have here is here the two had fought communication that goes to the very repair of their now counsel did not object to these messages coming in and state never presented the actual text of the messages or the actual verbiage  it's just his wife's testimony about what she recalled to say so these messages were clearly under the plain language of the statute inadmissible and what we have here unfortunately is a waiver is a voluntary giving up of the known right and here we have something very after trial he's filing his pro se motion same now hey wait a minute we're married how come she was able to testify about this so if anything i would look at his question forfeiture versus him voluntarily wait for it we have here a case with a single occurrence when it's his brother who's been impeached with pri felonies who has at least somewhat of a motive to to embellish we have the evidence in the case complex about taylor's right to even be at the house because no possible strategy that would justify failing to seek to bar what constitutes or appears or constitutes an admission that could not have been prostrated no reasonable trial strategy w this because even if you thought for instance of well you know he's apologizing for fighting the brother maybe there's something we can do that you can already present to rely on other evidence in the state's case to make that same point what with the i'm sorry what's the other well so sigman testified that during this confrontation between him and taylor in this third individual that the that mr taylor polled the stirred individual often said he's happy so you can go just based on that to argue that mr taylor has realized that this is too much  you know this fight is ridiculous you could rely on that without needing the statement you know i'm sorry for fighting your brother so there's no rationale to do it especially because it undercuts the defense strategy there saying hey you know we don't care if you find that that school we had met that it's the lesser offense i think that there may be some strategy on counsel's part just based on si actual evidence here in the cases there's a lot about the case that doesn't quite make sense for instance this idea that sigman just happens upon mr taylor there and the record suggest definitely that donna and mr taylor were texting back and forth earlier in the day about his having cheated and taylor tells sigman that she fled the state i think the record supports an inference that it's possible that she knew mr taylor was going to be there she's angry about his infidelity and she sends her brother over there  him say hey go file a p c down the line they say yeah let's send it back the judge can ask about all of your complaints you know your are you will know that your up for the judge to ask you about planes and this is one where mr taylor sends a pretty detailed letter to the judge with all of his complaints against his attorney and they originally a trial judge who gets it looks at him looks at the letter sends him some information on the privilege and then recuse itself and the the original trial judge i think it's a fair inference to say was obviously a little troubled by what was in that per se motion and when it comes in when the new judge brings mr taylor in first of all there's no indication that mr taylor ever got the first judge's letter that hey this triggers a crime for does that matter well i mean it goes to his ability to be prepared for the here so if he doesn't know why he's being brought to court that day and he probably he there's no indication in the record yet happy of his motion that he filed with the judge and he doesn't know when this hearing would be and so he's in there for unclear reasons and judges saying tell me what you defendant there's no indication that he realizes this is his chance he's got to go through every single thing that motion and you have as well you know certainly some colloquy between the judge and the defendant and fence counsels fission but most of that case judge can impart rely on his knowledge of what happened at trial when he's considering a crank and here it's a different judge you know it's nothing about the case at that point so he can't rely on his knowledge of what happened to the trial because he doesn't it so he has to flush out all of mr taylor's complaints and in a case where mr taylor's got a laundry list of complaints and there's no indication that he knew he was coming for a hearing when the hearing would be that he's got a copy of this motion in front of him it just it does not fulfill the purpose of prank call to say well those three complaints are all plus you have as well of the supreme court  what mr taylor would say or what defense council say so really what the judge did here sort of hamstrings not hamstring is it it turns it into a piecemeal process that defeats the entire purpose of a including a marital privilege that putting a failure to present evidence that taylor might hospital including a failure to advise mr taylor but the sentencing range was if he was convicted all of those things that the judge is aware of in the motion he tells the judge you know this motion is alleging right back to us but the judge never asks about any and this court and p papa said that all he has to do is bring it to the attention filing that motion was enough but the judge did not ask about it so that's what's inadequate about with the police and that's how you would expect a crime victim to ask why is that improper because there's no evidence that and that's how real crime victims would act you mean the state has to present evidence and somehow to show there's not initially want to get the police involved at all and so which is no that's not the issue here the issue is is this an improper argument yes i think it's an improper argument because they're explicitly saying they are credible because they cooperate the bell case in which you have as state's attorney telling the jury that a defendant confession is credible because people have a natural desire to tell the truth the decision of the third district twenty years ago was it right and why should we i think it's right because it's it's definitely right and you should follow it because it's it becomes essentially you know an argument that's unsupported by any of the evidence at trial it becomes a way for the state to bolster the credibility of it and or to argue that they're the norm constitutes improper closing argument rendering a fair trial no longer in agreement in a case with a single occurrence witness where you're explicitly bolstering his credibility by saying that he's credible because he cooperated you know the state put on officer danner to testify they certainly could have asked him you know when they're asking him what wasn't walker said on in your experience does that jive thought i would be surprised that the state would think that there would be a need to ask a question like well i think you know i i just don't see that this is the sort of thing that rises to the level of everybody it's not the same sort of thing  sustained in order to do that to defend as a component of the privilege has the burden of establishing every element of the approach and because this is playing a review he has to show that it's clear obvious that privilege would have by and relying solely on the content of the text messages because he did not testify or say what he intended when he says those massachusetts also the all that this court has in the record is the content of the messages themselves and in order for the village took by message has to be intended to be confidential and that's has sort of special restricted meaning it means it has been conveyed in reliance on the marital relationship and thus would not have been made but for and have been prompted by the affection confidence to resume the marital relationship but that does not mean that he would not have admitted the what she did battering the his wife's brother but for having confidence that she is going to keep that confidential that does not seem to be a parent's at least obviously a parent's from the contents of the text messages themselves and solely from the content of the text messages and substance that's all it's in the record with outside showing there is no basis for this court to be first on the matter plain error on the basis of the the admission of evidence which defendant claims to be in violation of the marital privilege it was never in book of course he does strategy and of course to place argue his will no conceivable try to you know possible strategy justified the defendant standing by letting this type of evidence admitted in the into the record that argument only has force if there is no action of someone who knowingly causes create vialli harm to another person which was the main contested element of the crime so the defense counsel did leverage this evidence in closing argument in an effort to try to get that yours to find reasonable doubt that he had knowingly intended i'm sorry knowingly caused great bodily harm to joshua sigman so in that respect that's this is something where there is conceivable benefit that would make it be that if it were prejudicial this court to the victim's unrequited testimony that he was battered by the defendant then and hits to the jury in closing argument that they could convict him of battery and that they're not contesting that he did in fact pattern josh so the only thing that was contested is whether defendant knowingly caused great bodily harm and so it was his mental state that was issue and the admission of that is contained in a text message is not prejudice the defendant respect to the elements that was contested his mental state of knowledge in terms of inflicting great bodily harm on the victim so in that respect there is not a prejudicial error and a closely balanced case the other reason why stock close problems with the state's case in respect to us signals practicality there were some holes in the issue according to defense but still those are anywhere close to rising to reasonable doubt as to whether the defendant battered him i mean it's not a of the trial judge in a situation like this so peter if this were presented i say this is the this is a tape from the husband to the wife here and you know maybe as the issue the presumption has to be made that counsel did in fact provide reasonable assistance and so that's why the issue could be deferred postcondition proceedings because then it would have an opportunity to make allegation and a petition for example proponent of privilege has the burden of sabotaging every element including that he's made human tend to be confidential and we have only the best content of the messages themselves in the context sensually that they were issued and the context has cut against them and the content of the messages doesn't really inform exactly why the defendant sent them other than if he says he's trying to get back with with why in terms of resuming a relationship but he said this really has to be that these messages would not have been conveyed but for the confidence that that would have been held in terms of the contacts and relationship and they just sent this not seem to be the case in least to the level of obviousness necessary to reverse on them on the grounds of clean air things explicit here well there is an explicit remark that there is not an explicit expression of personal opinion as to the credibility of the witness and therefore the argument about the coming of the credibility was not in fact personal credibility it was an argument under the beard for example lying on the common sense experience directing the jurors to to apply their common sense and experience there were some misstatements to believe but they were not substantially prejudicial that's not reversible error and therefore we just a few points here on earth first of all a matter of clarification the message from mr taylor to his wife the actual text of the message is never a word minute trial so we're going just off her recollection of what they were there better or worse well i think at least then you'd be able to you know as it is here we have her saying that he was sorry for fighting his for other her brother and that he shouldn't have been there but we don't know who he means and when she says he's sorry for fighting we don't know exactly what the language of that message was so we're relying on her recollection of the messages and her harassing me as to what they said so this is not quite an instance where the state's like  have got a tape of their messages or but me print these messages and put them on a poster board for the jury this is just her testifying about what he said at this point it was at least a year i think after the events so on how he exercises his discretion in  insist the plea bargain they are insists that the attorneys never even tell me what the plea agreement may have been or what offers may have been made prior to trial to ensure that at the sentencing hearing i was know in this case one of the