six by six men who kicked punched and hit him repeatedly with a bat and a metal bar approximately fifteen minutes after their beating on cell franklin encountered depending on the streets of chicago and define admitted station and a conversation with the police was video recorded in their conversation franklin told the police about dependence and mission that he philip thomas with a back people call frankly to testify at trial if franklin crocker aided franklin would have been allowed to testify about defendant's admission regardless of whether he had any knowledge of the events in the admission but frankly did not section one fifteen dash ten point one subsection to allow the people to ask franklin about his prior inconsistent statement that was video recorded in this conversation with the police if the requirements of the requirements of the statute in this case were match the prior statement was inconsistent frankly it was on the stand and available for cross examination the evap about what he was going to testify peak or operated was dependent submission and patients it is not subject to more than two interpretations it's a statute that was written broadly to encompass more than i witness testimony about the crime that is why they use the term event that is why they also use the term condition so they could have more then what it witnessed might have seen on them at the scene of the crime so event could be reasonably interpreted as the admissions and or of the underlying crime if he was an eyewitness to the crime then it would also include that but in this case there was only one of back there could be two events about which a witness can testify but when you're dealing with an admission here it was only one in fact he was testifying about and that was the no because each and every one of those cases went beyond the plain language of the statute and adopted a definition of personal knowledge that doesn't appear in the statute nor needed to rely on secondary sources in order to defined and it all started with the very first case of people versus hastings in which the court was not even considering a prior statement that contained a defendant's in mission and in that case but he seems court defined personal knowledge five years lying on a secondary source personal knowledge had a straightforward meaning it didn't need a definition and if the legislature wanted a specific definition for personal knowledge they would have included it in there but the it was that every day kind of term the people know and they did not provide a special definition for its plain on its face follow up to justice thomas question does the legislature's failure to revise that section in response to the numerous other courts cases that justice thomas referred to interpret in the statute have any bearing on whether this if it's plain on its face in it what they want what they want it there is nothing to change here there is nothing for them to do it states what they wanted it to state if they wanted personal knowledge to be  special way they would have provided it if they wanted event to apply to the subject of the defendant's admission they would have provided there in the statute but they didn't provide for that it allows for the admission of this prior statement because this witness if he cooperates would be able to testify about this defendant's admission even though he didn't have personal knowledge of the events in their commission so one that we're again going back and forth going violence through the principals territory construction that says where the legislature does not amend the statute after judicial construction namely in this case those eighteen appellate court decisions that looked at the statute as the defendant does here and did nothing about it we're not doing violence to the principles there should to reconstruction if we agree with you here no because this court has left that question open and also because the language of the statute is plain and clear as it is written and accomplish what they want and we have left it open where in people versus thomas reading and of the on state of condition in this case was error the plain language of the statute provided for the introduction of this prior inconsistent statement that contained the defendants in mission which it cannot be stressed enough had this witness cooperated he would have been able to provide testimony about the dependents in mission even though he did not see the subject of that that mission the purpose of the statute would be frustrated if it was required that he had knowledge of the subject of that admission because this otherwise admissible evidence would be excluded it is also very important to note in people beating the victim with a baton a metal pot hole and he also saw the pick them at one point try to crawl underneath the car and one of the offenders pull him back out from underneath that i ask you something about standard you just said it was overwhelming evidence statement had been excluded this outcome would be exactly the same and the reason it would be act exactly the same is because there is overwhelming evidence in addition to just the rocker's testimony we have the testimony of johnny gr that the rocker viewed the incident from one hundred fifty feet away and you say it was from five to ten feet away it's initial do you mean starting from farther away than the five to ten feet but he was initially on the second floor of his residence came down to the front porch and was closer and one point the group he asked within five to ten feet of his porch so there were parts of this event that were much closer than one hundred fifty feet missing no question we've talked about the fact that there have been eighteen appellate court opinions that consistently hold to the contrary of what you've said here and you peel away you assume that there was a conflict the split of authority you cited people versus leonard and i notice you never cite that again is there any conflict is there any split of authority in here that would have caused this court to take this case i believe it was an unpubli question therefore is one of statutory construction which you are all familiar with namely it does section one fifteen dash ten point one see to allow the admission of an inconsistent because total statement in which the witness narrates the defendant's alleged confession to a criminal offense if the witness has no personal knowledge of the underlying offense as this court is aware the first and last principle of statutory construction is ascertain and give effect to the legislative intent this principle separates the legislative branch which makes the law from the judicial branch which interprets it and must not be subjugated to any other principle of statutory construction but the state seeks to do just that it seeks to subjugate the principle of legislative intent to the principle that tells the judiciary to look first in its quest for legislative intent to the plain language of the statute and to look no further if the plain language is clear and unambiguous the truth is the state does not want this court to look beyond the text of section one fifteen dash ten point one c two because it knows what it will find there a clearly expressed legislative intent contrary to the state's position the state's plain language argument however has an insurmountable problem the text is susceptible to at least two different interpretations and is not on ambiguous in cases like this one where the state seeks to rely for the truth of the matter asserted and that's a critical point  alleged confession contained within a statement emitted under subsection c two there is an ambiguity as to both the meaning of the terms of vent and personal knowledge and in particular how those two terms interact with one another for one thing it's not at all clear that the term event as used in the statute should ever be interpreted to encompass the making of a third party statement and i'm talking about on the face of the statute and the reason for that is because for  statements are not generally described as events as a matter of convention and more importantly a third party statement used for the truth of the matter is third it is a general rule hearsay and if as the state claims a vent is a broad all encompassing term then any statement can be an event including hearsay statement but we know that section one fifteen dash ten point one c two cannot possibly allow the admission of a prior inconsistent statement in which the witness narrates i hear say statements that the witness personally observed so that reading would dissolve the longstanding proficient against double hearsay and for that reason we know it's wrong and we know that the statute does have on state it limitations on the term event and was there a believe the state's interpretation that event is a broad all encompassing term then the term event can describe any statement not only a statement such as an admission by a party opponent that would qualify as a hearsay exception but term event as used in the statute which is to say it's ambiguous and it all it all boils down to that and the the other thing that's wrong with the state's interpretation is that the it makes an arbitrary distinction between the idea that the the events its importance to the state is the admission of bent but the state wants to ignore the fact that the crime would also be an event under its broad all encompassing definition of the term so that distinction is arbitrary and it's not supported by the text the bottom line is that the tax is susceptible to the following are turning to interpretation that the personal knowledge requirement applies to every event described in the witnesses prior inconsistent statement including any event that's described in the alleged admission within the prior statement and that's for good reason because the state is trying to rely on events described in the defendant's alleged admission for the truth of the matter asserted there's also obviously as your honor pointed out justice thomas the numbers problem with the state's plain language argument on ambiguous mans by dictionary definition not open to more than one interpretation yet of the eighteen published appellate court decisions that have decided this issue not a single one of them has agreed with the state's supposedly singular interpretation of the statute so it's not possible that so many reasonable minds could interpret the statute in a manner that is inconsistent with it's on in the us meaning if the statute is on and take us then it can only mean what it has consistently been interpreted to mean and but however it simpson would acknowledge the inherent ambiguity of the t and that brings us to the other principles of statutory construction every one of which also supports simpson's position when the text of a statute is and that us courts must look to other rates of construction chief among them the legislative history and that a prior inconsistent statement in which the witness described the defendant's admission would be inadmissible and this is a quote inadmissible as substantive evidence unless the witness had personal knowledge of the incriminating conduct itself but here's the most critical part of pointed out in his reply brief that initially when representative cullerton mentioned micrograms article and then asked his his fellow representative representative a crack and is that your understanding of our intent with respect to the spell that mccracken answered i know i'm supposed to say yes but i'll be candid i did not think that was the limitation on it however the state neglects to tell you about color to this response which really hits home what the legislative intent is and if it's ok i would like to read you a bit of what he actually said carlton responded ok that's why it's important i think that we cover this and i did talk to mr graham who's a professor at the university of illinois let me just indicate that only a witness but personal i'll even quote from this article then i want for you with that but he goes on to quote from the article the part about the specific limitation on personal knowledge that we've been discussing and then he closes with these remarks so with that background of the b and i can assure members of the general assembly that graham was really the motivating force behind the bill and i think we should in fact incorporate in our legislative intent the article that he drafted concerning the belt and mediately after representative cartons remarks and with no further discussion the bill was passed by a vote of one hundred six to one so that's the legislative intent and with the statement of intent that explicit there is no need to rely on anything else however there are other principles of statutory construction  qualitative difference whatsoever between the types of statements allowed in under subsection c one of the statute and subsection c two and that's not a coincidence it's because the state is trying to eliminate the personal knowledge requirement precisely because it is the purpose of the personal knowledge requirement to exclude from evidence a prior inconsistent statement and which that witness is merely reciting second hand information there's also the principle of statutory construction which says that the legislature does not amend statute after it's been a tradition construed that we could presume that they couldn't have a problem with that instruction as your honor just thomas pointed out and of course the court has been very consistent considering the statute for twenty five years and the legislature has had ample opportunity to correct it finally and perhaps most importantly there is the principle of one hundred toward the accused if a criminal statute is ultimately susceptible to two or more interpretations the courts must adopt the construction that operates in favor of the key of the accused so in sum the state's position syntactically and mathematically impossible the legislative intent is clear section one fifteen s ten point one c two does not allow the admission of a prior inconsistent statement in which the witness merely recites the defendant's alleged confession the person witnessed her yes thank you for asking that question michael graham did have a couple of notions about why why that helped out one of which is that if the person has knowledge of the underlying advance that is the events of the crime  it is he's a better witness for cross examination essentially and also the idea that it's less likely if you heard the defendant repeat if say something that he knew not to be true based on his personal observations and he would be much less likely to repeat the defendant statement so these are these are the main reasons and what's important is that the statement that has this additional and just a reliability is slightly more reliable than one that doesn't and the legislature has drawn that line in the sand they the statements that are under see one and when somebody testifies in court under oath in the presence of other persons and or reporter who's reporting their statement they don't have to have personal knowledge of the underlying events they can they can tell you about a statement that they don't know the underlying events of but when they have said it in police custody and let's look at that the facts of this case that vonzell franklin made these statements he was actually under arrest for this crime it was the middle of the night and he had been interrogated for hour he said he was in custody for three days the officer said he was in custody for about twelve hours a week but either way there is nothing particularly reliable about what somebody says when they're being pinched by cops in the middle of the night  under arrest for murder so the fact that he that they're making him have personal knowledge of the underlying statements gives it an additional and discover liability so that brings us to the ultimate issue in this case which is ineffective assistance of coun and as you know in fact assistance of counsel has two components deficient performance and prejudice the deficient performance prong has been relatively uncontroversial in our case i defense counsel has a solemn duty to shield the defendant from on reliable and prejudicial evidence and in this defendant boasting and bragging of his brutal and brutal acts and brazen confession and at the state really has never suggested that this could have been a possible trial strategy as it clearly could not have been they did suggest and that brains their opening brief i believe that counsel wasn't deficient because it would have been fruitless to make an objection but i think it's fair to assume that that doesn't really make sense because all of the appellate law especially in the first district has supported our position for twenty five years so an objection would have been sustained and that leaves the prejudice prong and there's a few things to consider with respect to prejudice first just the general impact of a concession on the jury as a general proposition how potent today is how powerful it is the relative weakness of the rest of the state's case and the state's interest as on the confession in this case one point though before i get to those aspects of prejudice but if an unspoken of proof the state has suggested to this court that close overwhelming evidence and also because the evidence that was objected cheney had had a minimal effect on the trier of fact in that case regardless the standard for ineffective assistance of prejudice is the same as it always was that the defendant must show there's a reasonable probability that the outcome of the trial would have been different if not for counsel's deficient performance in this case the state presented three pieces of evidence an elderly eye witness just a wrecker who identified some some from a line up the testimony of an accomplice johnny graves who was offered a very sweet plea deal in exchange for his testimony against the defendant a prior inconsistent statement of another accomplice who completely avoided prosecution just by virtue of cooperate with the police after he made his statement he was never prosecuted and then when he came to court he didn't even want to repeat his statement and finally the fourth piece of evidence in the most powerful the confession the alleged confession of marcel simpson admitted to the prior inconsistent statement of vonzell franklin and that was the state's strongest piece of evidence and they knew it that was why they that's why they emphasized it so heavily and pleading replaying it to the jury and their rebuttal closing argument just before they went to deliberate so that the confession evidence the state's case wasn't very good and that you had asked  front porch to the where the beating actually forgot hundred sixty four feet and rocker had said that at one point when the persons were running chasing the victim that they passed within five or ten feet of his house and that was where that number comes from he certainly didn't view the beating at that distance so and and there is also you know that the rock there's a lack of physical in forensic evidence in this case and there isn't no linking him nor linking simpson to this crime through through physical or forensic evidence or even the bronco or the chevy or the victim and then the fact that the that the state had emphasized that and lastly i would like to remind the court that there can be ramifications or intangible consequences if you will of professionally on reasonable assistance since i'm slowly or did not know that franklin statement was inadmissible he allowed the jury to hear it not once but twice including just before their deliberations he even put on a defense that centered on refuting the statement he called a woman named for nature houston with the specific intent of trying to establish that there were elements of bond's al franken statement that were untrue because he had said she was in the alley and he called this woman to say i wasn't in the alley so he put on a defense designed to refute the statement and there's really no way to know whether counsel's erroneous perception of the state's admissible evidence may have affected his ability to secure a plea deal or a lighter sentence for his client so in some counsel's overall tyson i apologize for my response you about the conflict in the p l a that was noted in connection with the impeachment issue that was raised in the l a but which is not addressed here today there was no conflict noted in with regards t issue of race here so the reason why you argue this question take this case after all these years of these cases settling this issue is because our conflict an issue that you're not raising now is that right now the reason why this court should take this case is because the plain language of the statute provides for the introduction of this evidence it's plain on its face every day of the week this witness can get on the c beyond the plain language of the statute relying on secondary sources to define personal knowledge to take the term of fact and find when it comes to an admission it just doesn't apply to the mission and implies the subject of it and that for eighteen years that needs to be corrected the plain language of the statute provides for this there was nothing for the legislation to change here this is what they intended according to the plain language of the statute otherwise they would have provided the definition of personal knowledge otherwise they would have stated that the event as it applies to third party statements applies to the subject of the state and they would not have allowed it to apply just suit the making of the invasion as it allows for now the only way to find what the appellate court did here was to read an unstated condition into the text of the statute itself and the law states  that the that a reviewing court should not presume the legislature didn't mean what they stated on its face and that is exactly what has happened here time and time again and that needs to be corrected having been corrected if that wasn't what the legislature wanted and they can change the language but the language they gave us provide support the introduction of the statement when you look at the language of the statute  with this case the state considering what the secondary sources say it should have sat should not be in this court's minds when it's looking at the plain language of the statu now where the meaning of the statute is unambiguous this court of state it will give little weight the fact that the legislature did not amend the statute with when the decisions that issue were the appellate court it is now the time for this court to make the decision on the issue and then the legislature can act in this case we are not calling crimes all franklin as an eyewitness we are calling him as a witness to the making of it a mission that's a critical point to be made here this statute does not allow for the introduction of inadmissible double hearsay the statute doesn't come into a fact until the witness takes a stand the state asked the question about evidence that is going to support and then he disavows knowledge of that if the state asked a question about in the miscible testimony at the outset it would be objection sustained the witness would never have to disavow knowledge of that of that prior statement but because it's admissible evidence the witness then had to either testify cording to what he stated previously and if you didn't the prior statement comes then there is no room within the statute it's important to note that professor graham did write an article regarding the federal rules about an evidence on this issue before the legislature acted in this case the legislature did not dot adopt any restrictive language to reflect what professor graham wanted in his article and that is significant it's also important to note that while representative cullerton did state that he spoke to professor graham and what he thought the intent in fact it could be just that they were ready to vote on it and it stayed what they wanted it to state and that was just the intent of wine represented that it is also significant at this point the senate had already passed this bill and there's no indication that they had received any information about th in terms of the ineffective assistance of counsel claim with the prejudiced part of this accomplice testimony is still good testimony and can still convicted a president even standing alone also consistent statements brought in under one fifteen there's ten point one is brought in substantively there is nothing in the law that states that neither testimony under either scenario isn't good testimony and what's important here is that this a these prior inconsistent statements substantively used corroborate every thing that i witness sac every single thing the sec how many people are chasing right but how many cars either what kind of cars are there what kind of weapons did they use when they beat them when the victim tried to get underneath the car does somebody pull him out it's pretty significant that these accomplice this and this prior inconsistent statement testimony while different then i witness testimony corroborated him on every point it prove the defendant's guilt beyond a reasonable doubt and establish would have been found guilty even if franklin's statement was excluded that testimony should not be discarded like it was discarded by the appellate court but should be considered and kids considered strongly a ten minute recess at this time