representing the appellant mchenry richie he was convicted of predatory criminal sexual assault and two counts of aggravated criminal sexual abuse we filed a brief appealing and we lay out plain air standard there are a couple of different things that from our vantage point clearly show that mr ritchie did not get proper representation the st area i want to talk about is the testified that the appellant ad assaulted her as well but then she goes on answering a state question and that she was also sexually assaulted by her brother in the past and she didn't think it was a big deal because she had dealt with something far more severe in the past the appellant's attorney does not stand up and immediately which he should have done there was a prior motion that had been filed in granted by the court under the rape shield act saying that we were not going to have testimony about other sexual activity yet palance lawyer did nothing they allowed that testimony in so here we had a propensity witness whose credibility was bolstered through sympathy because not only was the testimony that she had been assaulted by the halland but also by her half step brother so bad that she thought the abuse by the appellant in her words was no big deal so that in and of itself the defense lawyer should have objected it should have not been allowed by by the judge because of his own ruling on the rape shield ac but judge it's even worse because i invite the court to look at page thirty one dollars of our brief and on page thirty one dollars of our brief we cite this state appellants lawyer allowed ms martin's testimony to go on and during a break then he approaches the bench and there is an exchange between the state appellants lawyer and the judge the prosecutor states quote i think there's a real problem with this defense attorney sitting here through all the testimony and never objecting letting all of this information come out that he says is so prejudicial and then after he's allowed the prejudicial information then say it was so prejudicial it needs to be stricken he could have objected but he didn't then we go on on page thirty two we point out appellants lawyer even agreed that hey i probably should have but he tries to say it was tactical there was nothing tactical about that there nobody could reasonably think that was tactical he should have objected he should have moved for a mistrial because it violated the rape homophobe and a child beater all without any objection st he was called a racist destiny richie the victim in this case testified testified as if this was relevant a all but testified that mr richie used the n word now how could any jury look at him and assess the credibility of the evidence if they now believe that he so freely uses a word that is so offensive so if he's now a racist then they go on to say that he believed that he would have been called a word that was derogatory towards homosexuals and he slaps his daughter in response so now he's also testimony that he's homophobic not only is he a racist but he's a homophobic and maybe those things are true maybe they are but the jury should never have known that because it's irrelevant and highly highly prejudicial now here say allowing hearsay and can be ineffective assistance of counsel i think that case law is clear on that however it's not it's not just letting one thing and it's this drip drip drip i think it has to be sort of this totality but look at some of the hearsay that was a destiny richie the victim in this case testifies that she told her half brother nathan then she's allowed to testify that nathan tells bet which was the  appellant's former girlfriend that's here so how how would he be allowed to do that there was no objection at all then later by i bet the girlfriend testifies as to what she heard from nathan so you got three witnesses here say twice and by allowing that this props up the credibility of the victim destiny you know in of itself allowing hearsay an ok probably not in  effect but when you put it in all these other areas it is there's a th area nancy hackman who's the victim's maternal grandmother she's asked on cross examination if she believes the victim that that's and that is an outrageous question outrageous should never been asked but the fact that it was he should have stood up and object because how is that credibility is the province of the jury in the jury alone she didn't asked does she have a reputation and what's her character for truthfulness none of that do you believe her or words to that that question the prosecutor goes on to say well why would she lie look what she's been through even her grandma calls her a liar that was inappropriate that should have been also an objection during that close victim if any richie is a lawyer here in peoria the appellant's attorney wasn't prepared at all and he not not anyone can misspeak anyone can misspeak and get a name wrong but when you place it into context of all these other mistakes that i have pointed out it is grossly unfair that clearly he has hit the ineffective assistance of counsel laid out and in strict now other crimes were allowed there were propensity witnesses allowed gracey april and had their the court allowed them there was a motion filed seven  five backslash one hundred and fifteen to f seven point three there was a hearing and then these other crimes testimony was allowed to come in yet there was no evidence of any common grooming any common words that were used to to convince these these victims no and i call that common modes of manipulation no comm duration of the assault now the location was still in the home so the location was still the same but no common description of the surroundings by the victims in other words in the exact same location in the house  no common description or really any clarity on sexual acts or behaviors before and after the sexual act there really was nothing unique other than they were all under age and he abused but there was nothing that was a proximity or a similarity that would balance out the prejudicial nature of it because other crimes evidence is always going to be prejudicial always because it's going to be you know suggest in a sense that the defendant created or actually caused  trial within a trial this mini trial that was essentially for victims that you all said the same thing with out a lot of specifics and the state really needed this they needed to have these other victims otherwise you know there wasn't much to her testimony they didn't she didn't promptly report this there was no d n a or any forensics it's all came years later and there was this underlying bias the victim in this case and the a pal and they had friction and that was testified to they you know they had talked to one another he wasn't invited to two certain things i think it was the graduation in fact if i recall right it was allowed to right before the graduation to pay for some photographs for the graduation and so there was this evidence that perhaps whatever caused the anger between them ocurred between the defendant in this case paying for the pictures for the graduation where he was invited to and the graduation where he was not invited to and there was a few days or weeks in between and that was really crucial to the case without it i just don't see how they would have i would they would have gotten to  a conviction i'm the father of a question on the that was the net priming graduation or do i have that wrong yes i know man i think you do have it right i think i misspoke yes it is from big deal when a mistake is it but it's mistake after mistake after mistake and oh my gosh when they have the defendant on the stand and that lawyer asked the very direct question did you sexually assault fill in the blank right and it's supposed to say destiny richie and instead he says tiffany richie their jury had to be confused who the heck is this tiffany richie she's not even in the case she's not a person uttered but i think it is evidence that the attorney was so ill prepared that what he had on his mind was another female lawyer who practices in this jurisdiction that's how ill prepared he was and if your honor if you if you look at the docket mr boars very withdrew from the case and then came back into the case at a short amount of time before he announced ready for trial if that's part of the record he withdrew the public defender came in and all the sudden boars very comes back in the case and magically is ready for trial i think that when you look at and he was court appointed right he was private counsel yes that's my understanding yes he was private counsel court appointed was dale thomas he was the public defender so it went well i'm not sure who the st lawyer was but boars barry was as private counsel he withdrew jail time as with public defender than for sperry came back well perhaps this is the kind of representation that your client expected  hired this gentleman he did but i think yes you're absolutely right and you're entitled to have a lawyer of your choice but you're also entitled to have that lawyer be prepared and he should have been aired and he wasn't that and that is shown in he didn't anticipate your say objections he didn't anticipate what he was going to do to deal with gracie's testimony he was taken off guard by a lot of things as you read it it's not that he was incapable of course he's capable of mr boies very is a good lawyer but he wasn't ready for this and his misspeak is very telling thank you thank you mr shiner mr good as to how all of this here of all i think about the prosecutor but if you look at the totality of the prosecutor's case but the prosecutor's trying to do it was was the plate on these people because all of the people the victim in this case  because as counsel did point out there's a number of years between when the sexual abuse sexual misconduct most stations occurred and when it was being tried these years later so don't all of those l that is that all of this corroborating information or allegations were are told that it's other crimes evidence but it is not really a proven crime because there's never been a prosecution there's never been a trial there's never been a conviction it's all basically i'm saying this happens i didn't say that it happened at the time that it occurred there's been a long period of time that has intervened here it seems like in that kind of situation it's critically important for a lawyer to do a completely spectacularly good job because he's basically batting at shadows is that fair i mean is that a fair statement mean we're not dealing with actual  be you know that would be i think something that is beyond what the generalized definition of the crimes up in says other crimes or other bad acts it's a situation where when you look at the statute i don't in response to the very concerns that you by done a fide the state had developed a panel of judges and the requirements that they had to meet because of the severity of the punishment involved for a capital crime but i'm not suggesting that it's not appropriate for this to come in as other crimes what i'm suggesting is that there are crimes that are that have banned where there's been a conviction where it's all been tested and then there are crimes where it's just an allegation that has nothing behind it it's just an allegation and it would seem that in that kind of crime where it's allowed to come in to show propensity that there's a higher burden the attorney has state's request to admit the propensity evidence was in their hearing and that yes then or so that's there's the record of what defense counsel did that the court entered an order saying it's go object to your say about the linkage of how people but how people found things out without going into any depth into what was said about the incident itself actually prejudice is the defense the same thing with respect a lot of the us because of the nature of the fence because of the major of of defendant trying to teach and say in this case that the reason why one of the reasons why and what it is he also cross examined on was the fact that  part of his defense is also trying to show that what happened in this case was that that the victim here was put up for this that somehow there was some kind of a conspiracy theory going on to blame him for d special misconduct trying to show that the rift in the relationship was two events that occurred obviously after the session was kind of years after but also established that rift before of course the prosecutor is going to bring out other things that he said that the victim and that he said that basically contradicts that so what has to happen here is in a lot of these things that co cut everything off i think that shows bias that shows partiality and favoritism brendan was her son was on trial that still doesn't that still doesn't insulate her from being judged like any think when you read counsel's explanation as to why he didn't want to explain why he didn't want to take an object at the time didn't want to make a big deal he didn't want to bring something out front of the jury didn't want to make more of a deal  stand up and start raising the flag and start you i don't want to interrupt you but we're getting close to the end of the time and i would just like to question have you would answer my question about the sufficien this record to judge whether those were matters of trial strategy or not if it was a better trial strategy then it's not ineffective assistance you know the matter what we might think with two thousand and twenty hindsight those decisions are made when some of the spontaneous things that erupted in the courtroom that you don't expect in council for example didn't direct the attention to the word  the homophobic word or the other unpleasant word just let it go and maybe there's a good reason for that but does this record allow us to decide whether it was a matter of trial strategy or here could you just address whether the record will allow us to decide whether there was a trial strategy or  presume that trial judges know the law and are acting according to the law and i think that counsel wants us to presume that defense counsel didn't happen good reason and i'm wondering if the presumption shouldn't go the other way shouldn't defense counsel get the benefit of the dow until in a post conviction setting his explanation for doing it that way is not as to the question earlier question the judgment date as the standard there is that it's you don't have to prove beyond a reasonable doubt about the other crimes evidence but you know you also want to be a little bit more than just  i know that's a generalized statement and but that is this is something that the legislature has created this is something that the legislature has created this just the more and i think that doesn't i mean if a crime was committed does it matter whether or not the victim thought it was a big deal or not well in a situation like this situation i think that i think that it does i think that it can actually if you create doubt where there really isn't any d when all the facts are brought up and i think the providing an explanation allowing her yes it talked about prior sexual misconduct the form got to have rather yes it was brought out know that you like to talk mystic in it but sorry we have to be fair to martin it's not so much that gracie martin was saying that it wasn't a big deal what she was saying was if you compare it to the rape from my brother my step brother half brother it was no big deal i think what the testimony was that was so egregious that what it is alleged the defendant did to her she  that's what she's saying she's saying it was so bad that what he did i moved on and i feel like that creates credibility to it that should have never of been there because they needed that credibility to prop it up with what if i could bounce over to the hearsay portion destiny is allowed to testify that nathan tells baba now bob that's the ex girlfriend if how can she do that and when she does that that creates credibility in her telling nathan nathan never testified what if nathan said no that never happened  didn't testify we don't know what nathan would have said yet the jury heard what he said because allegedly nathan tells by bet well that creates credibility to what destiny told nathan and they needed this they had to prop it up because otherwise it's pretty thin it years later there's no forensics and if we look at her version you know she claims it happened three times and on this very st time bob betts president bob betts two kids are present and nancy the maternal grandmother is present and this is a very small house based on all the testimony and they're all there watching television together and somehow the defendant in this case was allowed to rape destiny in a nearby room without anybody knowing or hearing or  anything and the nd time she testifies by bats in the house down she does say by bats asleep but she says well maybe nancy the maternal grandmother is there now remember nancy testifies and she doesn't support corroborate any of this and then on the rd time there's no fewer than ten kids waiting at the front door for destiny to come out and play bobby sinclair is watching television in a room with the defendant bobby sinclair leaves the room for ninety seconds to get a beer and there's a digital sexual assault in that ninety seconds and destiny goes out to play with friends  that the problem is is that you could that have happened of course but it's not very likely it's not very credible and they needed all these other things to add to it which is why i think they mcveigh referred to it then i think he could have addressed this a heck of a lot better he's clearly not prepared and i would love to know what the strategy is to sit back and allow your client to be called  homophobe and a child beater if someone could enlighten me on that i think i would i would maybe consider that in my future trials but there is no strategy to that and couldn't the state have strategy that's sitting on your hands because you're not prepared you don't know what's going on and that raised you haven't raised any objection to the sufficiency of his cross examination of the dick or the  witness you haven't raised any objection or indicated that he wasn't prepared during the hearing and the propensity evidence being admitted and with respect to the motion in limine any you haven't raised any issue that closing argument was not persuasive he didn't know the record he it in are you properly so if you adequately cross examine the complaining witness if you fought hard to keep the propensity evidence out and if you well i appreciate that it's a tough question and i appreciate it and i can i can answer it like this because i didn't argue it doesn't necessarily mean that mr board or is very aggressively get anything it's in the record and that records before the court court can see how he cross examined destiny i don't think and we're not lawyers for either side you know we can search the record to support your argument we read the briefs and worse we the i understand i mean yeah right but he is his cross examination destiny and his closing argument just because i don't think that those necessarily rose to a certain level for me to pick apart doesn't mean that the failures and all d these other things that are happening through the trial make it ok if there's there's you know there's nothing about cross examining the victim that is more important than dealing with other witnesses those they're all import and he he failed substantially on the majority of what was happening in that trial and i understand your answer then the prejudice comes from the hum quickly as possible