good morning jobby from the state of politics founder on behalf of the defendant donahue mr donahue is currently serving a seventy two year sentence after being convicted of first degree murder at a jury trial and the entirety of the state's case against him consisted of two eyewitness identifications run by a witness who admitted that she was pressured by a detective into selecting mr donna his photo and initially had selected someone else as resembling the shooter and this someone else did not resemble mr donahue and the other way to  decide but i would submit that this does not look like mr donahue so this is this court should be troubled by that and then of course was she later gave a statement indicating that the detective had told her who to select or suggested to her clean cut meant no mustache and no beard and then on redirect right the prosecutor asked well couldn't clean cut also me enough in mustache and beard and he agreed but i would also ask this court to think about you know and in common parlance with respect to facial hair a clean cut generally means clean shaven and whatever he may have meant by clean cut we cannot deny that when mr donahue i'm sorry when when the defense counsel asked mr collins did the shooter look different than the spatter mr donahue that he selected he said yes and he did not have to yes he could have said no mr defense counsel whatever i may have told the police about his facial hair this shooter looks like the photo that i selected and he he did not say that and that should really get that it was the i would submit that well i think the question that mr collins was asked was broader than that it was that it was did the shooter look different than this photo and and he said yes and i would say that's that's wavering you know i would say that's a bit is that there could be yes it could mean that but i would say you know i would say in that that that's a pretty significant difference given the fact that there was no this was the only specific feature that he had pointed to when describing describing this offender to the police everything else was completely generic he might have said something about his clothing like a blue shirt and black shorts or something that the only specific feature he pointed to whereas with respect to facial hair he said he was clean cut and so i would say that even if he's wavering on this one feature that that's pretty significant given it's the only specific part that with with tiffany but we don't have that with mr coll come out of god in this theory i think the prosecutor may have asked her well you did you feel fear fall but we also have to consider that she voluntarily met with this investigator a second in mr di in his favor and of course our brief goes through those five factors in detail here you know from purposes here i would just ask this quick to consider that we know but the risk of mis identification increases where as here we have a brief chaotic and stressful encounter with a stranger wielding a weapon and we know that both witnesses were distracted daiquiris efforts to pull his knees tiffany away from this violent encounter so you have all these these factors presence that increase the risk of mis identification and then you have one witness selected and it would be one thing if these you have these identifications that are perhaps weaker problematic but you also had some other corroborating evidence but here there is no physical evidence pointing to mr donahue there's no confession there's not one shred consider that the arresting officers at the time were undercover so we have really i don't think it's i don't know that we can have any confidence that he even knew that he was being approached by officers i mean he may have just seen some people coming at him and decided to run you know the stand the standard here it is deferential to the fact writer but this court has noted that that deference does not require a mindless rubber stamp and this court has not hesitated in the past to reverse convictions based on vague or doubtful identifications such as the identifications here are you  the conspiracy comment that's correct the middle military comments were not preserved but we ask that you address that those comments under both bonds of plane are we believe th plane or apply here first because the evidence was based on two week identification so it was far from over romney and secondly because you know that the supreme court has over and over again has had that second is particularly appropriate whereas here you've got in a continuing pattern of ongoing misconduct this is a continuing pattern but what you hear is all i would say i think th i'm not there there's there are cases where the supreme court has found reverse a second prong response plain error i think there's wheeler and blue that there are cases and here they were r i apologize your honor i don't have the cases here with me but i found out that that the supreme court has applied second prong plane is reversible error and i thought it was wheeler and blue for i preserved errors where there is a pattern of ongoing misconduct and put the prejudice they did it is heightened for example where you have certain factors here that heighten the prejudice for you they're made on rebuttal so it's not like  can mitigate the impact of the state's attempts to distract the jerseys with these appeals to their emotions by addressing the jurors again so and we're there was where there were objections there were they were overruled there were no instructions to disregard so i don't know that this court can say with confidence that the improper remarks did not contribute to the conviction well you're the one  was that defendant should show that the remarks constitute a material factor in the defendant's conviction and that but they explained further that this means a new trial is required if the jury could have reached a contrary verdict without the improper remark cannot say that the improper remarks did not contribute to the conviction and here given these factors i don't think you can say that the improper remarks did not contribute to the conviction or weren't these remarks so bizarre that no reasonable jury would consider i don't think that's the case you know the state was the prosecutor here was trying to was was trying to appeal to their sense of the because they'd be against significant potential for the jurors to be to to consider such remarks and to that such a much can inflame the passions and distracts them from the proper considerations before then the evidence at trial and the inferences that can be made there f crime beyond a reasonable doubt with reference to eyewitness testimony it may be found insufficient only whether right that compels the conclusion that no reasonable person could accept it beyond a reasonable doubt as counsel mention crime illinois courts have adopted the five factor test outlined in the us supreme court case of neil persons biggers to assess the credibility or reliability of eye witness identification those five factors are the opportunity to observe the offender at the time the commission of the crime the witnesses degree of attention the accuracy of the witnesses prior to steps in of the criminal the level of stunts he demonstrated by the witness that the time of the identification confrontation and the l length of time between the crime and the identification confrontation how cool and her argument challenges primarily the opportunity to view the victim of the accuracy of the fired description the level of certainty in the witness degree of attention with reference to the first factor the testimony good the testimony elicited at trial from both tiffany and the hearing collins establishes that they have more than a sufficient opportunity to observe the defendant before  scene the cheery collins never explicitly gave testimony as to how long that encounter was he did have to found however that the entire time frame from the initial approach of the defendant to the shooting was five minutes so we can and i are in a rational trier of fact could have been far from that testimony that set me the bond at least had one to two minutes to observe the defendant and that the kerry collins had at least somewhere there was never any testimony judge that he will bond with focus on the gun in fact the testimony elicited trial contradicted such an assertion she testified that she clearly star of the defendant's face the question was posed to her whether how the lighting conditions conditions were in that area she said it was a well lit area that there was street poles in the air area given that testimony there was no rational basis that a trial that could end as a can't defense counsel assert collins somehow distracted by the presence of that weapon i also judge the fact that you have evidence showing that at some point the defendant left that saying he went somewhere else before the defendant  up which would have given those witnesses an opportunity to leave that thing or somehow try to flee if there was any fear because he had a weapon so given those factors i don't think there's anything and it's the people's decision there's nothing in the record support assertion that they did not have sufficient opportunity to observe the offender defendant in this case i all fell out with respect to the challenge to the accuracy of the description mine that i pointed before not after and then she went on to say explain and her exactly right swear i never been through this before so i didn't know what to expect after this by me coming from the same neighborhood and that she was fearful because she wasn't aware she knew that this person was appearing at her home on behalf of the shooter in this case that evidence brought forth to the jury they've heard that it is when the father it's with them the products of the jury identification was reliable additionally judge there's a case for and a counsel fights to a way versus having there in her brief in this the sixth district case but there's an important language in that case the court appears from looking at the back of it that investigator sanders wrote that statement as an interpretation of well statements that certainly would bind gates to him but even if the court were to consider that this that those statements made by her was somehow problematic there is an independent factor test that can be employed and even illinois same people be flowers that barry district right now is this independent factor test that where there's evidence that shows that a witness had ample opportunity to observe the offender at the time however there was a mention by the defense attorney in the beginning of his closing argument regarding his service in the military that this is what he said some of us were in the air force and when root review under reversible error because the issues represent where he'll counsel during that case the defense counsel consistently objected to statements made by the prosecutor best particularly bolstering the credibility of officers that was the case that involved the motor of a police officer during trial the the prosecution actually displayed a manikin displaying the actual uniform of the officer they had been shot and killed they had evidence of the brain splatter from the officer when he was shot in the head back up or with the fact that during closing argument the prosecutor consistently made remarks about showing buoyancy and supports of the police department immediately after everything the work on and the prosecutor goals on to say and redirect the jury to focus on the evidence by simply saying but you are entrusted to be the members of society a society where i'm going to see that justice and is done in our society promise to save injustice to insist citizens i told you before i when i gave my opening statement that you have been bested within the powers of justice in this case and that's the great interim in this hour i know that in this case that means that means convicting this defendant of the crime that he was proven guilty of by going to eyewitness this who spahn him by the defendant's actions and by all the evidence you have had in this case still valid the conclusion of the as part of your deliberations in this case so i think bell's facts greatly distinguish this case from the case that our fight to end defense counsel brief where there was obvious pervasiveness there there was there were things done both at trial evidence cherry issues things that where happily admit it and also comments that were continuously made despite sustained objections that distinguish those cases from the case that bar one other thing that the people  like to comment on going back to the first issue that i neglected to mention is this argument that there was no additional corroborating evidence as running nose in like it and also in the case of people being agron the first spoke to this issue and said that lack of physical evidence is not in and of itself a reason for reversal i'll submit to you that the young and the reliability of the to eyewitness identification you do have the evidence the flight despite the fact that counsel argues that  mr donohue or the defendant was not aware that was the police there was a twenty or thirty minute chase here where the officers gave chase i'm sure it would be rational for us trier of fact to assume that the officers and now that they were police officers and the defendant zero nine question accent which also ties defendant to that area so given all of those factors i was the midst of the court the evidence in this case where the fish and to make a finding of guilt the prosecutor's remarks were not improper even if improper plain error analysis should not apply and i would ask this court to find defendant's convictions and sentence or first degree  shirt with respect to tiffany's testimony about her statement to investigators stant sanders i believe i believe goes on redirect that she stated that the detective may have pointed out mr donahue after she selected after she selected that photo but she began upon further questioning by defense counsel stated w on sure who to pick i was i had these five photos i was unsure who to pick and then the detective started silat started pointing at this photo and i felt that's who i was supposed to pick and to this extent there's some confusion about this and some back also pointed to some of these other biggest factors particularly the ability to view the offender and you know how relevant this court chooses to weigh out the individual discrete biggest factors it's important to remember this is argument you know this could do it better i would i would submit that this is pervasive misconduct or we have magic comments about the military that are completely improper and then you have this police conspiracy comment which this really does quit has repeatedly condemned and where you have evidence that is far from over rallying i would say i would say that this constitutes reversible error you know this comment pointed to the issue of flight  i don't think this court can just assume that the police officers announced their office i don't think the court can just read facts into the record that are not there so we're the evidence was fired from overwhelming i would argue that that this