the first case counsel lyttleton raised three issues in his brief but today i'd like to focus on the first issue and i'd also like to reserve five minutes for rebuttal at issue in this in this argument is whether the trial  submission of evidence about the robberies tonight littleton a fair trial and there really two considerations the first is whether the severance was substantive substantively admissible for purposes other than the propensity the trial court in this indicated that it was considering evidence of other robberies only to establish modus operandi the second consideration is whether the evidence of the ninety four and ninety seven robberies as testified to by two retired police officers was procedurally admissible it was not based on personal knowledge but rather on conversations that the officers had with arresting officers witnesses and other victims and littleton contends that it was hearsay and violated his r admissible as a public defender who represented the evidence of the other crimes was rank hearsay the officers didn't have any personal knowledge they weren't there when the crimes were committed they were testifying to advance that had absolutely nothing to do with the purpose for which the other crimes acts were committed which is more this operandi because they're testifying to things like the circumstances of his arrest a brief change from one of the ninety seven robberies or shot but i don't think that the fact that there was a guilty plea in this we're preventing him more or somehow limit his right to confrontation in the instant case and there's actually a section in crawford there's a couple responses to that what i think you're asking is whether or not the fact that he entered a guilty plea because room entered the plea way of your weight of confrontation that that would somehow apply to a case over a decade later and i think there's two response to the first is you don't hear a jury it's a bench trial and the judge has said that he only was going to consider it for purposes of modus operandi judges are presumed to ignore irrelevant facts especially when in a situation where they express lee say i'm only considering you for one purpose you don't have the problem of a jury misunderstanding those instructions  the judge saw was what the state was not through the guy minutes of the night forward but it was it was it in the motion they represented that right they wanted present was the preliminary hearing testimony of the victim's ok and so when when the judge was considering whether that evidence was admissible for something other than propensity and a permissible other crimes purpose he was considering what was alleged based on the policeman you're hearing testimony now ultimately he just determined that he was going to deny it where i think he turned down a lot of the state to withdraw that portion of its motion because he did not believe that the defense defendant had an adequate opportunity to cross examine the witnesses during the preliminary hearing of whether or not the evidence was more than prejudicial and i also don't think going back to points i made in the brief the name of the seven s was distinctive enough for the purposes of modus operandi i mean really on a lot of what we're before that time when they were selected by the offender and in their demographic similarity as being older women and the way that these items were taken from them i mean these are i'm sure you're familiar if for no other reason with before with your research and with the cases cited by the state it doesn't have to be identical there's a recognition that you're always going to have some differences that so what's your response to the wall that it doesn't have to be identical but the elements of the offense of robbery just senior citizen are taken by threat or he was a force when the victim is over the age of sixty  even were not functioning so it could have easily been a crime of opportunity as opposed to some sort of plan to follow the victim's home from the grocery store but again you know it's very hard in cases of robbery to  other facts for purposes and want to stop around because the elements to some degree are going to be similar and i think that makes it all the more imperative that you really look at the facts and determine whether or not there's something so highly distinctive and i think even this case cited by the state people the jones points this out because i'm now curious the evidence of the other acts was close in proximity temporally i think it was about four hours apart the defendant in that case used the same car with the same driver's license plate and when he committed armed robbery concealed the raft in a white a shallow wish now i think those facts were distinctive i don't think there's facts in this case that are that distinctive and i think area that they were elderly that you know he robbed the one in the grocery store parking lot the other in the garage the other one was rocking home i think two of the victims are rocking home in the seven cases so he really the only way to become pro business if you actually believe that the officers testimony were true so i think the argument that it's not hearsay it's the reliance on and it's a two thousand and ten kids to name a divorce the statutory exception for propensity of some domestic violence cases and again i'm not doing this to try to try to teach my colleague here but just to just consistent with the points i made in the brief basically when considering whether that statute was constitutional they also noted that you know through all the rules of evidence just because you have a statutory exceptional wrongnesses propensity evidence you still have to consider whether the probative value or when it's prejudicial or fact and you still have to apply rules of hearsay and and now i'm analyzing the constitutional statute the illinois supreme court consider that we said pretty clearly that you know you don't throw out the rules of evidence just because it might the evidence might be substantively admissible under another rule and so i think the same thing applies here i don't think we throw all the rules of evidence just does one want to get in some other ac you spoke to me once i might remember you came over a month after this robbery took place and you can be sure but she identified him based on a photo a miss was raised in the second argument in my brief she didn't find them on the basis of fulfill the array where there were six for those little tunes for her containing the legible word sensing information of the bottom small so i think the identification was completely deleting it through an oversight is what we're looking at in the question is does that oversight because there's no evidence of intentional act so severely yeah definitely cation which is later  significantly larger than the other one minus one hundred one hundred sign around his neck that said this is the guy i mean i think i think if you look at the photos i think they're just i think it was someone to suggest that i think her identification is you really left to consider evidence testimony and there was much more testimony on the other acts regardless of the court's representations about using it only for modus operandi i don't see how you can get around this and not considering his propensity i he please the court counsel there's nothing nothing underhanded about the state moving to admit relevant evidence and other crimes evidence is relevant to show modus operandi it's also ever relevant to show a host of things and is commonly admitted to show intent motive absence of mistake consciousness of guilt common scheme all of these things are just jump to the yes to the chase here  i understand that the state attempted to bring in this evidence through use of luminary hearing transcript where there was an opportunity to cross examine and confront the witness and that the trial judge  rule that you could not do it that way but them leader allowed it to be done through the testimony of police officers i understand it wasn't the state's choice to go forward in that manner  none the less i would like your response to the issue of whether because it was not the victims of these crimes who described the circumstances that would  be elements of proving modus operandi why red is not in permissible hearsay because it's not being offered to prove the truth of the matter asserted but to prove the modus operandi yes but it isn't the truth of the matter asserted via essential element to proving the existence of the modus operandi exception if we contrast this with moss and with lovejoy we have a completely different basis for the admission in mosques and in lovejoy you had people who had been murdered and there was an attempt to prove that they were murdered because they had  used an individual of a sexual assault in each of those cases and the existence of those accusations would supply the element of motive regardless of the truth or falsity of the allegation of sexual assault used you can see that in this situation you're trying to prove modus operandi through facts given not by and not confronted by the defendant of the actual witnesses to it but by absolute hearsay and it's statement that the officer is not a witness to these witnesses statement but not to the facts so isn't that a huge distinction between the use of hearsay here and in the other case s there is a there is a difference say you know that's evident but it's not it's still not hearsay because it's not being offered for that the fact that it's true so if if it's the critical fact and i have a motive to do it in this case we're talking is it this is the guy that did it because this is the way he functions this way he does his job well that's not we're not stopping offered to show propensity saying this is the  issue of whether it if it is or whether the error is ominous or not you can't ignore the first step which is whether this is impermissible hearsay and don't conflate that with whether there is other evidence that would mean that this is harmless beyond a reasonable doubt because right now we're focusing on whether it was an error ok ok but if it's i and i understand that because it's  little bit of a distinction because if you're looking at the substantive evidence underneath it shouldn't matter whether i should say it shouldn't matter but whether it's true or not is not the issue it's what is being offered and admitted for here it did it it's undeniably true that he committed these offenses so it's not being offered to show that he committed those offenses it's being offered to show that his robbery of shank was his handiwork right in their handiwork depends upon not the observations of the police officer who testified but i mean observations of the victims who were absent and as i said before through the decision of the judge not with the situation where their testimony was able to be confronted but rather in somebody else's recollection and superstitious of what these people who were absent had said and with our relying on the truth or accuracy of that then it doesn't specifically says i'm admitting it for this purpose only and he considers it for that purpose only he's not considering it for a propensity he is even in his written decision he says this is what i'm considering it for and editions of that you don't need the modus operandi because you have don evans who observes doesn't you know she observes defendant before he commits the crime from a distance of three feet away she sees him go between two cars and he call out and then she sees defendant run from between the two cars he taught sir from the other side of the fence with you know asking her if she wants the person and then when she says yes i do he says nine runs away her identification is is is really overwhelming evidence of defendant's guilt and the are for the photos if you look at them they are six very similar looking gentleman facial hair their appearance is the photo array was put together by a computer program that specifically looks for similarities and features there's nothing to suggest that miss evans identify defendant because there was some writing on that photograph she also identified him in a photo i mean us as a lineup that the photo also indicates except for one large gentleman those are four very similar looking subjects as far as their appearance their facial hair their skin tone have not only evan's identification but also jacobite this is a huge yes and if i could just point out that in two of the older cases defendant made admissions to the police officers that yes he grabbed he grabbed the woman's purse and forcefully took it so that would also be evidence that is would not be excluded because that was not hearsay for these reasons we ask that you affirm defendant's conviction thank you thing and the second consideration is the back of the last question the state's response was whether this is harmless and i would just point out the excessive detail about the ninety four and ninety seven robberies i really have at one point we have to my mind you can believe she was wrong to believe that her identification was inaccurate which is which is i think what happened in this case was tried initially before a judge so wrong so you know the excessive detail coupled with the way they consider jocko brightest says testimony judge folks consider jacobite as his testimony coupled with the fact that chink was deceased at the time i think really shows how harmless this