and what we have observed is the rule of law which protects our rights our liberties and our private and without the rule of law all of us could easily become hostage to the whims of those who have power into the age of man said that might makes right if you remember nothing judges as impartial guardians of the rule of law and acts of lawyers our number here for the like for their position to begin i would ask the firearms evidence came in at all is because it was found in the apartment in which the murder weapon was found but that fact is not connected in any way to brain starts harassed it's not a detail of his arrest he was arrested outside mark referenced to quote unquote other investigations and alleged crimes and there was a discussion on the record about a motion in limine and what it covered and the trial order stated on the record that there was another murder investigation admission and the state  shooting the mother of the victim received an anonymous voicemail message that the police never trace stating that a person with the defendant's nickname committed the crime two months later in  miss howard said that she froze but she said everything happened so fast and she was stunned and all of those descriptions of her mental process goes to her opportunity to observe what she was observing  immaterial d n a evidence that was recovered from the weapon and the state's own expert testified that there could be really been up to over one hundred contributors to this mixture of d n a found in the murder weapon so our contention is that admission of other kinds of it and requires reversal unless the record can affirmatively show that no prejudice resulted in addition to the evidence being closely balanced in this case this court and that our supreme court has acknowledged that weapons evidence itself in general is highly prejudicial and that's because a jury made see these weapons and convicted because they think that the defendant is a bad person as a person that has a propensity to commit crimes and in particular with firearms evidence murders in this case these guns were highly particularly prejudicial given they're not only their intimidating appearance but the quantity and and the menacing look at them  there's a machine gun type guy that looks extremely menacing looks like a maniacal hitman might have been possessing these weapons and yet the defendant was in no way connected to these weapons the weapons were recovered by the police two months after the actual crash and during the raid of the apartment building not connected at all to the offense in question they were actually looking for somebody completely different related to a completely different  draper who said that it was a large black revolver he said it might be in an automatic or in nine millimeter but he was uncertain he did not mention any kind of extended clip there's no evidence that an extended clip triggers an adversarial judicial proceedings and the supreme court was given the opportunity to address that ruling and decided just that assuming that that is correct we fight here hard anyway so they have i would say witness or a victim that hasn't they haven't been able to locate for a while somebody they want to talk to but not necessarily somebody they are targeting as having been the person that is wanted for particular crime the second none of them were able to identify mr starr it's entirely possible the police were let go right that is true however before that he police had already made him a target in this case had already declared that probable cause had existed and maybe down the road that that problem cost would have dissipated but that is the same as going for a complaint and have a complaint filed or judicial proceedings that triggered attachment of the right to counsel and you know there's there's really no detriment to the state and in finding that the adversarial judicial proceedings commence at  defendant's you know being hauled into a formal court it's it's the relationship between the government and the defendant and whether the relationship is out of the adversarial and the board of knowledge that that can be so colleague allows this court to provide greater protections than the united states supreme court has so far acknowledged and although they rejected the argument that almost a dozen states that have provided the statutory right or criminal procedural rule that allows for the six of them the right to counsel upon detention  has first in regards to which is the other crimes evidence there's really two different parts to this issue the first part being whether the exclusion of the guns was a part of the of the additional guns and this is clear from the actual filing that was presented to the court by counsel that filing by its terms talked about the fact that the defendant w as possibly being involved in other alleged crimes but he has never been found guilty of those offenses that would not refer to the other guns which were found in the residence there was no mention of defendant extended clips and the mission this was significant because this gun was discovered in plain view so the officer clearly had to describe precisely what he saw in order to be indicating to everyone how the gun was in was ever shown to the jury that the jury never saw of the picture with all three weapons it's not clear from the record what exhibits went back and although defended indicated in his brief that we should assume that that she went back to the jury we actually in fact don't that was partly to the jury however the murder weapon which was recovered in the apartment building didn't have an extended plaque granted it was two months after the murder but however it the murder weapon really well but when the officers approached the building on the one really good investigatory alert they can defend him without shoes running out of the front door of the building and then they chase him down to the world where there's nothing that two additional guns the only comments that were made connecting potentially connecting to and to anything would be the extended clips and the additional ammunition in those of the standard clips and again the murder weapon which was recovered which was people versus wilson and people her birth is guaranteed in both of those cases which are very similar to the case before this court the defended are that his sixth amendment right to counsel was triggered because there was an arrest warrant issued for him he was taken into custody and then he was placed in a lineup without being given the benefit and in both of those cases the illinois supreme court said that the fact that he was placed in the lineup was not a by the way well i would say that there's a significant difference between an investigative work and then the arrest warrant and certainly in arrest warrant because because it for the differences that were expressed by this court in highland it is an internal mechanism that is allow the police difference and investigative alert is different from a warrant and what is laid out specifically in the illinois constitution is a warrant and if we're going to get into terms of statutory interpretation the plain language o may or may not be the same there are differences and what surprises for probable cause under an investigative a warrant based on the determined internal determination by the police may not be the same as what the judiciary would have made as a fin with the same type of variation of probable cause in the constitution of illinois that no well to date investigative clerks have never been found to be unconstitutional and so it is certainly at the time that it was exercised in this case was a valid exercise of the police of the florida keys and certainly i would argue that the language of the illinois constitution in and of itself does why did they have to once why didn't they just get arrest warrant why didn't they go to a judge until probable cause you know what what the defense is saying this is an end run and you're telling me that it is not and i'm having trouble seeing how it isn't something that are allowed for the police to do it that it's never been ruled that it's unconstitutional or a violation of defendant's constitutional rights and so with that beam said it was a valid mean that the law is clear that the right is bigger by the manisha the initiation of adversarial judicial proceedings and as i said there have been at least two illinois supreme court cases that but if you look at the actual language the rockery hate what the what the united states supreme court said there are here and we affirm what's been held the bor and what the overwhelming majority of jurisdictions have held which is that court that they want to be expert witness and what the defense indicated that they wanted to present as our expert witness testimony was was very limited and that was that studies have shown that where there is a gun present that there's increased filed when the board was denying motion that they felt that that was the type of thing which was understood by the average juror that expert testimony on that feeling would not be helpful that that time viewing the defendant that it might be a closer case but here we have three eyewitnesses independent of the defendant's no demonstrated motive to lie who makes three identifications of this defendant in that one of relationship between the two there was there was no testimony about that but whether or not the was about we don't know that after the anonymous attack the fact that the person chose to contact the mother of the big seller with the information that they had witnesses in for photo race he was identified by two in the three witnesses and the third witness testified at trial you know i thought i recognized him but i wanted to wait until i i saw him live in person before i made an highlights just as humans point that the expert witness on the vagaries of my witness testimony was really important in this case because what what they were being shown to identify via i think basis the expert testimony on the believability of eyewitnesses is has to be taken seriously so so my question is is and again is this a case of if it is more serious based on the in there but it's a it's not science how can we have any reasonable person we did the judges taking that seriously well i would say two things in just to clarify one point that defendant has not challenge the the lineup  or the photo arrays in there in there on the field that's not an issue that was raised by the defendant or this court but getting back to your question to clarify what happened with the court decision the court was informed prior to the motion filed that counsel's plan was to file a motion for expert testimony and it was at that time that the court made the comments that you were referring to i don't believe in that kind of testimony  but once the motion with actually filed it it's clear that the court did exactly what the this court said the judge has to deal with in walter allen which is to look at the the testimony that the defense asking to present look at it in light of the facts of this case and decide whether it would be of assistance to the jury deciding whether what the expert would testify to was within the can the average  if you look at the chords actual ruling on the motion and his comments at the motion bring the trial it is clear that notwithstanding his earlier comments that that's exactly what he did he said i looked at this testimony i looked at it in light of the facts of the case and i found that it wouldn't assist the jury that this is something which is well within the understanding of the average jerk i read what you submitted to me i've read much of the documentation that he submitted to me and i just don't think that it was appropriate for this cas i'll let you cross examine these witnesses on the level of their strength time their ability to observe on whatever you want but i'm not i'm not going to allow this testimony and based on those comments in his representations of what he did he fulfilled the requirements that were set out for him and people versus our and as to the specific the whether that ruling was writing expert testimony in this case would have been when there's a god people get struck and when people are stressed sometimes it effects their memory that kind of expert testimony is based on statistics it would say that some people are affected when it does happen that stress can affect some people that some people it doesn't mean that the three witnesses not just anybody on the world that's two of these witnesses that said this is pretty scary to me that's correct and i am not in any way trying to indicate that these witnesses work scared it's clear from the record that they were scared but it's not there in the record that that affected their memory  talking about the jurors determination of credibility how much weight the jury is entitled to give these eyewitnesses and identification and certainly if the well settled that issue the credibility and the determination o credibility and the way to a given testimony in the state is the exclusive province of the jury and that while she may think the jersey give too much weight to certain testimony such an eyewitness identification if the the state can have that it's not clear from the record that the witnesses fear back to their ability to observe that's exactly why this kind of evidence should have come it is not the average knowledge of the average person could within the average things not only are your descriptions of the shooter minimal their opportunity to observe is the merest seconds but there were some inconsistency is about the witnesses story that goes to show that the impact of this violence could didn't actually properly address the request to introduce evidence had already made a foregone conclusion that this evidence was not going to come in before the motion was even filed and under allen the judge did not adequately consider the weight of this evidence and how it would help the jury and the other part of argument is that even if the court after the fact consider the motion that it was an abuse of discretion under the particular circumstances of this case because as this court noted eyewitness testimony here was basically the the main part of the state's case against brain starts and there's no better piece to introduce identifications as a separate issue but we did in fact argue in our reasonable doubt argument and in our prejudice argument that the suggestiveness of the n r a and the lineup do go to the weight of the clarify about whether the the photographs of the weapons would next to the jury in the photographs are not explicitly listed none of the exhibits that went back to the jury were explicitly listed in the record however the state entered all of its exhibits into evidence the pictures were marked as people's exhibit number such and such and the state the court really gave that both parties the opportunity to object to send any of the the state says the defense counsel did not specifically ask these guns be excluded and my question is why not that the defense attorney explicitly said that the and and it was easy for the state to isolate the narcotics evidence and allow photographs of the of the apartment in which the murder weapon was found without reference or showing