with morning when you were you were veterans so you know that we all fifteen minutes per side and we are very good about a few minutes of the bottle and we do want to hear what you have to say if we're if we're engage seems the courts and counsel i'm ariane sign on behalf of ricky watson primarily be discussing the first issue of the brief but i can answer questions the court may have on any of the arguments the prosecutorial misconduct in this case prejudiced rawson and tonight him of his right to a fair trial prior to trial defense counsel requested that the state disclose the surveillance location of officer lead who was the only eyewitness the court held in cambridge hearing which was out of the presence of defense counsel and a and deny disclosure to the fence however at trial the officer testified that the building was no longer being used for surveillance and so the safety concerns were actually no longer present and the prosecutor gave incorrect information then to the courts at that in camera hearing in the state on appeal does not deny that the prosecutor gave incorrect information under people versus price when the state wants to invoke this qualified surveillance privilege the state has the initial burden to show that the surveillance law cation was either on private property with permission of the owner or in a location whose utility would be compromised and under the standard the state did not establish the need to invoke that privilege first the building was not private property to people residing there are correct correct it apparently was clear that there were residents and landlord taking care of the property at the time of trial but right was not being used for surveillance by the police were there be any potential danger posed by disclosure given the fact that people were living there were living there at the time of trial as opposed to before it's hard to see what that danger would be and if there was such danger it was the state's responsibility to disclose that and go over that with the that the defendant should be given to the should the closure should be given the location where indigent use line drawing you would agree the judge is trying to say i want to while you do the most effective cross examination you can have but i don't of the officer was that it was not only currently not being used for surveillance but it was not going to be used again because it was now occupied it was unclear as to why it was no longer being used whether it just wasn't useful to police and they weren't using it or because it was occupied but the state again it's the state's responsibility they bear the additional burden here at this in camera hearing and they didn't turn it over to the court judge did the defense pretty white latitude in their cross examination of the officer on those surveillance issues what would have been different if they actually known th specific address well in people versus night and people versus price the defendants were also allowed to ask more specific questions or similar questions to the instant case such as distance from the location you know if there were any obstructions the same type could have gone to the location investigated and then had information available to impeach or contradict officer early bat that was not available so dance with the they were sort of preempted from there an opportunity that they might have had to impeach but were the victims they didn't have a chance to actually go up to the place and look it up right exactly exactly and even if the state had met that initial burden in the case watson established what he needed to underprice that disclosure of location was relevant and helpful to the defense or essential to the fair determination of the cause and here the state's entire case rested on his testimony about what he saw from that surveillance spot so knowing that he's that location was obviously relevant and essential to the fair determination of the cause people versus night how about when a case turns almost exclusively on the officers testimony disclosure of the surveillance location must almost always be ordered again because the case here turned almost exclusively only h testimony disclosure should have been granted had the state provided the court with accurate information how do you deal with the cases that followed and distinguish night the women  both of those cases the court reversed on plain error and here we have defense counsel preserve those issues in this case and not only did the prosecutor give incorrect information to the court concerning the surveillance location but the prosecutor made improper comments durin the court indicated that the police officer was still cross examined about various aspects of the surveillance lighting conditions and the obstructions the familiarity with the area whether used by the actual letters and the distance of  any other individuals during the time of the rest how was that in any way different from what the officer was subject to in this case in terms of cross examination it's actually very similar to what the officer was subject to here but again point back to price and night where the court doesn't go over the exact questions that were asked in those cases but the courts do make clear that the office of the defense was allowed to ask the officer distance from the transaction spots and attorney said at one point in some pretrial it's ok we don't want to pinpoint location are you telling us that he said that because he also believed that the building was still being used for surveillance it's unclear it's unclear if the defense counsel actually had  that information whether or not the surveillance spot was being used or whether there were safety concerns because all of that was kept from him it was all done up in camera hearing and so it's unclear but it also could have been said in the context of he hadn't gotten any information about about this from the state and the court was going to deny disclosure so he just wanted some information so that he could provide a defense for his client did preserve the issue correct that's correct your honor in theory here is significant because the state's ability to invoke this surveillance privilege is not something that can be taken for granted invoking the privilege again limits the right of a defendant to cross examine witnesses against him and at this in camera hearing it's one of the few times in the otherwise adversarial proceedings where the defense is not allowed to participate so the state has a huge responsibility to make sure that all information given is accurate now again not only was this part of the air prejudicial but the state's improper comments during closing argument compounded this error against watson the prosecutor told the jury i wish i could give you those police reports and you would come back out and find defendant guilty it's improper to tell a jury that there is evidence it is not a lot to hear in people versus emerson the supreme court held that they reversed the case and in that case the prosecutor told the jury that there was evidence concerning the defendant's arrest that they couldn't share with the court and the court said that was improper and should not be choppy continued and they went ahead and reversed the case the prosecutor here also attempted to define reasonable doubt which is improper in the recent case of people versus jackson this district admonished the prosecutor not to make such comments on retrial and lastly the prosecutor told the jury that the defendant had the same subpoena power to call the  effect of shifting the burden of proof to the defendant now each of these errors was improper but certainly the cumulative impact of these errors denied watson a fair trial and contrary to the state's claim here was not harmless in part because all of these comments it directly on defense counsel's ability to question lee he's testimony which the defense was not allowed to do concerning the surveillance location and the error was not was not harmless because again contrary to the state's argument the evidence here w not overwhelming we have officer the he testified that he sees watson go into it again way and pick up a green cigarette box but it's dark out and barnes who was a defense witness not impeached testified that there's a motion detector light in that  gangway but it only goes on when someone's at the bottom of the staircase and we can make clear that the cigarettes were at the bottom of the staircase so there would have been no light in the gangway also he testified he was able to see the color and the shape of money again it's his hearing from across the street then the alleged buyers back would be blocking his view of what was seen there were also several inconsistency between the officers and significant details were left out of the police report and from their testimony all of the officers denied entering pete barnes home and they denied detaining her son but barnes testified again barnes who is not impeach or contradicted testified that the officers came in her home for a period of time searched around and that they did detain her son so all of these problems with the evidence  show that it was not overwhelming in this case in the third or any more questions on this issue the prosecutor withheld information concerning the surveillance location and thus watson was able unable to fully cross examine the key witnesses a trial that used to be that the claims of toil misconduct were only brought up in the most egregious blatant cases and it's very unfortunate that now this claim is tossed around on a very regular occasion as in this case where the defendant doesn't agree with the state did or what the state said it's not just a mistake it's not just an error is passed this conduct and it's a shame that it's that those kind of serious serious allegations are made in cases like this where they are far from  true it's inappropriate and it's improper the first case i could not disagree more with the restoration of facts the council just presented to the court the state did not withhold anything the state said in its motion in response to the defendant's motion to disclose that it wanted to maintain the integrity of the building for future use now that is the test there just a test that applies also to counsel who stated and i'm sure it was a mistake defense counsel was in fact present in camera hearing it's right there in the appendix to the defendant's brief it's a serious argument from both the state and the defense counsel defense counsel was present  not and as i said the state side we may be using it for future use so defense counsel was perfectly satisfied with that he said i'm not looking for a pinpoint location i just want to know whether it's easter west he was perfectly satisfied with that  and there is no showing whatsoever that the state withheld anything and furthermore defendant was able to find out essentially everything before trial the lighting conditions the a surveillance office elevation and the distance he did object he did put it in his motion for a new trial but at trial there was no issue it was fine they had all the information that they wanted and even today in the defense brief the defense or pry brief there's still a question out there what more  want to know what more did you want to know that you had a right to know it was all out there and the state did not withhold anything now in night the court call to defense counsel for not making an offer or proof of what he wanted to find out in this case spence coun with i mean why do we have an issue them before trial he was forthright when he said i don't need a pinpoint location onlooking force elevation i just need to know what there's east or west and with that i'm ready to go to trial that's what he said very far short of showing that the next the comment regarding the police report defense counsel in his own quiet closing argument and this distinguishes it from the case and lies on the entire theme of it was the police reports and everybody knows police reports are not admissible evidence and it wasn't really so much about discrepancies although there were a few it was what's not in the police report how come this isn't in the police for bias and then the police or why don't they check off that box and in a certain point when that's the defendant's entire theme it begins to beg the question what is in the police reports what the state can't say obviously can't say so the state made the comment that it did  misconduct now it's plain air defense counsel didn't even object to it he didn't raise a motion for a new trial it was a brief comment and there is no possibility that the state's one comment state made unfortunately made many many objectionable comments here the state did not in the she case the state said if i had my way i would hand you all these police reports and say you go back in there and find that he's guilty the comment here was not like they are the state the state said  there was absolutely nothing wrong with the state's comment about the burden of proof independent schools in your argument he said wes washington worse jackson we turn to washington was the and he knew perfectly well that state did not have the equal opportunity to call these witnesses because we couldn't compel them to incriminate themselves so it was perfectly proper proper for us to respond in that manner and i would point also perfectly appropriate again this claim is forfeited it's not a motion for a new trial it's very similar to the comments in the recent case of work out where the stay said in closing argument the phrase beyond a reasonable doubt does not mean guilty beyond all court said when you look at that case the court didn't rely on any supporting authority and there's really a it's just a conclusory opinion so the court said other courts that what courts said of the course that have looked at these kind of comments and found them proper and they are proper or at least not improper so that claimed as well it was actually perfectly appropriate your quote if you can just say the turning closing can talk about jury instructions talk about the burden certain you don't have anything like that in this case and so over the line do you think that using the word reasonable by itself adding the word doubt created the impression that it was a sort of positive act by the jury instead of a negative one if you think it's reasonable that he's guilty then go ahead and find him guilty instead of if you cannot find beyond a reasonable doubt that he's guilty you have to find him guilty did did it switch it no i don't think it did your honor and i don't interpret it that way and i would point out that the court told the jurors that closing arguments are just argument and that the court gives the jury instructions and that's the law they have to follow well that was quite correctly defined there we don't back just a half a second this is a case in which officer leahy and officers of pat and several officers all testified and there were a lot of i don't remember i don't remember i don't remember is that correct  i don't think so as i don't think they're just greg is that was that one of the reasons that was it information that they didn't remember in the police reports it if i'm remembering it i think what we're talking about is whether they could recall the physical description of the defendant and the codefendant and the offender anything and that's what they didn't remember what they were wearing what they looked lie who arrested him who detained him who put who in the car well i don't think it went that far i don't think went quite that far your honor and really it doesn't matter because this is not a case where the police were searching out a defendant these people were on the scene officer leahy never lost surveillance of the defendant and so it's really not terribly relevant whether a trial they could remember what these people look like look like they were arrested on the scene right away so i don't think that was a material circumstance finally if there was any error the claim was the evidence was in fact absolutely overwhelming this defendant was caught dead to rights the officer lady had him on surveillance the entire time he was using binoculars it's very critical that he never lost sight of him it's not that the defendant went inside the house and came back again he never lost sight of him he was arrested right away the people found the cigarette box in the alley containing that individually pick so if there was any issue which there was not it would have been harmless beyond reasonable doubt so we ask you with a quote from the defendant's conviction and sentence thank you proceedings it's clear that defense counsel wasn't there a perhaps the index was referring to the part before the in camera proceedings where there was arguments by both sides as to why the defense wanted that disclosure even if defense counsel was present the still the state s gave the court inaccurate information again this qualified privileges one of the few occasions where disclosure of discovery is denied to a defendant so it's a very important privilege and should only be used if accurate information has been has been provided to the court argues that defense counsel said he was satisfied with the information given but people versus night the work points out that the defense counsel never explained why that exact location was needed or necessary to help the defense and nevertheless cases victors and so you know five hundred fifteen feet and second floor this is going to be the place isn't that one that's too far and it's too close it's going to be this other one going to do that it's possible it was possible could have done it but thinking there were safety concerns because he was the judge still under the impression that building was still being used for surveillance is it a correct statement i believe that's correct your honor that's correct and the state has noted that the standard of review here for the surveillance issue is abuse of discretion now had the court been given accurate information that under people versus night that would be accurate however because here the court really wasn't allowed to uses proper discretion because he wasn't given full information for hand so it's a legal question that we can review de novo the state also in the briefs cites in one nine hundred seventy three case for abuse of discretion under the improper comments section of the arguments and people vs weaver has made clear in two thousand and seven that report significant details and those are proper comments and invited response would have been for the state to say that the though these significant details were left out of the reports nevertheless the officer was credible for various reasons but that's not what the state did here rather the state said that i had information in this report that when you would read it and come back and find the defendant guilty which actually is mimics the language in chief which the state has pointed opponents improper arguments to respond in kind then the defenses arguments here were improper they were all properly based on the evidence and used to support the defense again all of the comments were directly on defense counsel's ability to question