the attorneys who are going are you please approach the bunch and identify yoursel whether or not mr charles large was denied his right to confront the witnesses against him where he was convicted of residential burglary based on pulling their hearing testimony of the responding officer in this case the pollution hearing testimony the cross examination that was performed there was done by an attorney who had that was her very first and only appearance on the case she was then representing both mr large and codefendant trials denton at the time and the substance of her cross examination went to try to clarify where the officer was and what he saw from the location that he was that he was positioned at last year in people versus torres the only supreme court reversed and remanded a murder conviction where plain mary hearing testimony was used to convict the defendant and the defendant was denied the right to confront the witnesses against him the cross examination got out that that the key witness was away from the room where the shooting occurred for one to two minutes there was there was voices he heard overheard from the other room but he couldn't determine whether or not there was an argument he did not see the defendant with a gun he did not see the defendant standing over the victim all of these things came out in the cross examination and the attorney also in arguing over one of the objections stated that they were going explicitly into the bias of the that's absolutely correct your honor and in doing that the first step in the n l sisto by the tories court is to determine whether or not the motive and focus of the cross examination was similar but similar or the same as to the cross examination what it would be a t trial in torres where you had you know a more extensive examination that you had here the court was able to conclude that the motive in focus was indeed similar that is not the case before us today where the cross examination literally just started to it it sounded as if he was saying that both of them were lifting or putting down a carpet i wrapped around a copper pipe at that point on cross examination he said he he clarified that he did not see charles lloyd touching you know any of the  copper pipe or the carpeting and he any then started to state that he saw them originally from the street or at the street it of course wasn't known at the time of the preliminary hearing but at the time of trial it was certainly known by that point that you could not see the rear entrance to the building from the street it was in fact at the back of the building just as you go down the side of the side driveway to the very back so counsel was certainly was not privy to the fact that the officer could not have seen anybody going in or out of the building or you know from the front street and subcouncil was unable to press officer wilcox about that detail at trial the state in its brief argues that there were  did get out of the witness in grounds that you could not see that door from the front however i think that the testimony of the putting the hearing is somewhat ambiguous as to whether or not he made the supposedly made the visual contact of going in and out of the door from the front street or whether it was when he was coming farther down down the side and additionally the right to compensation is the right to confront the witnesses against you not to confront a third party who can also attest to you know whether or not a door was  not so the fact that you know in looking at profit versus versus washington for example going to historical analysis of how the right to confrontation has developed it's a face to face right and there's certain there's a value that's inherent in that right to actually being able to confront the witnesses against you at the time that they're testifying because it's not simply that you know the trier of fact could could piece together that well maybe the officer was was not being truthful about you know what he saw when he first arrived on the scene are you know significant questions one you know being that the attorney who had just been literally you know appointed that to to arrive to do the planning a hearing that was a last appearance on this case represented both the defendant and the codefend fences between these two defendants was there any evidence presented to them that there was there was no evidence that there was a you know there was certainly not an antagonistic position that was that was posited here at trial however if you know that as the  assigned to them multiple defenders unit and eight you know at the preliminary hearing i believe is the last time that both defendants were represented by the same attorney so they they will know the type of evidence in the rocker before us would be making it very of the same or similar motive in focus as what would have been a trial if you conclude that then you can go then you would go on to underscore as the other steps which you know you would consider or not there was any additional information that came out that would have been stayed to the end the only supreme court said that that sent a message to the attorney to probably to wrap things up so in this case there was one objection when when you know the defense counsel was starting to press you know well where they have the door where they actually going inside at the time and who was doing what so that objection was the same so this was certainly not an exhaustive cross examination or an adequate opportunity for an effective cross examination where none of the key asking for us i mean certainly the only supreme court in torres came down and said that yes you know you can't have they were not making a blanket rule one way or another they were explicit about that this is case by case basis on whether or not the women are hearing testimony can be admitted trial with the with this is unavailable however i think that fried does illustrate that there are concerns at a preliminary hearing that the scope of it is going to be limited as it should be to the question before the court it's not meant as an exhaust discovery vehicle in this case the facts of this case really illustrate sort of what what frye was getting at where you know once once probable cause had been established it wasn't as if defense counsel said yes i finished with this witness your honor the way that it transpired was there was an that cross examination is very brief certainly this one doesn't even rise to that level of the counsel never stated that they were trying to to impeach or trying to seek to show bias of the witness in our case whereas they did in torres so we're trying to see his ability to the facts established that would have allowed her to perfect impeachment because i don't think it's clear on the record that you can say even with the witness in terms testimony a trial where you could say ok you can't see the rear door i don't think that gives you necessarily  state's objection at one point after she was trying to clarify so so did you see him go into the door was he at the door talking about mr large at that point so the court did sustain the one objection and as i mentioned in torres you know that the court made  likely what was what was thought of the time in reading the transcript however i don't think it's crystal clear as to where exactly the witness is saying that he was in the car where where the defendants were at the time and what they were doing at the time so also additional him to go back to so the first and foremost and in distinguishing her and saying how this case is somewhat different toys was the content of the cross examination itself but even if you go past that in this case you know there's a representation of two clients which was not the case in tours at the time so i certainly counsel is going to feel some restriction in prying into things that could be harmful to one to one client versus the other this is the very reason why presumably the case was assigned to the multi defenders unit you know after the hearing so those are concerns you know and also without knowing discovery certainly counsel wasn't aware of the fact that you couldn't see the rear door from the front street for those reasons if this court finds that there was error based on people  where the only evidence implicating that defendant came by way of this testimony that error must be must be harmful in this they cannot prove it's harmless beyond a reasonable doubt for those reasons we asked this court to reverse thank you you've got five nine officer wilcox who was the unavailable to clear in this case do respond to suspicious individuals at the address of ten twenty three eleventh avenue responding to that area officer wo two individuals charles mart and charles denton and specifically what officer will cox saw was initially denton exiting outside of the apartment and in his hand he had a carpet and inside of that carpet work hopper heights charles wright the defendant in this case was in total in addition after also willcox saw those individuals outside of that apartment or that building they were seen going in to gather and they were also arrested together and this is essentially the testimony that officer wilcox put forth during the preliminary hearing that occurred on october seventh two thousand and nine the cross examination consisted of twenty three questions for cross examination eight objections seven of which were overruled in the defense's favor and  you and i can speak to that i will say that the objections that the assistant state's attorney michael malley set forth where objections that were in the rules of the illinois rules of evidence i will say that but ultimately at the trial level because the declarant officer wilcox did die before the case went to trial his preliminary hearing transcript was properly admitted under the illinois supreme court rules and also in accordance with the confrontation clause and that's what we i maintain today now specifically the illinois rules of evidence at first require the declarant is unavailable declarant was unavailable because he was deceased and i think the crux of today's argument deals with the cross examination was there a fair opportunity to be able to cross examine and the people do maintain that there was a the case and then the initial case or the subsequent case was the trial court or the actual trial hearing we do maintain that based on the questions that were asked at the preliminary hearing and the questions that were asked at the trial court with basis of observation specifically as to the preliminary hearing these types of questions that were asked with the bases of observation where the officer was when he first observed both of the defendants how far he was away when he observed the defendant or when he was able to see the individuals from that greer building those same types of questions  same same basis of line of questioning regarding the basis of observation right as anyone who was the owner of the building all of those questions during cross examination dealt with the fact that one could not see the end there was a defense exhibit which showed a picture of the building where it was we in a way that once again that you could not see the door from the street and the same questions that were asked the same basis of observation questions that were asked participating in the residential burglary what other evidence well there was also the cooperating testimony of ingram who was the owner of the building who testified that he had never seen those individuals before  besides officer wilcox's testimony of what he saw there is also the owner of the building who states that he did he'd never seen those individuals before he did not give those individuals permission to enter into that residence so that would be the other the same but were asked at the time of the six pm hearing all of those questions this is six pm incident excuse me all of those questions dealt with the basis of observation now going back to forest just to make a couple of distinctions i will make clear that the illinois supreme court did state that the motive and focus was this were the same they did agree but there are a couple of concerns that they had with that specific case the fact that there was a course of environment that was created  there was in that case there was an instance where the trial court was reluctant to start the preliminary hearing and specifically going to what occurred with the objections that also created a coercive environment  for example their first objection that was made by the defense counsel was certainly sustain and when the defense counsel stated that he wanted to explore the bias of the witness and specifically the bias  of the witness and the victim's father the trial court over while that however the defense did not go did not explore that prejudice now the second objection how was the basis was allowing that transcript to be inserted into evidence that does show that there was a full and fair opportunity to cross examine because even during the colloquy that happens the people maintain that there was a opportunity to cross examine and that preliminary hearing transcript was indeed allowed in addition but going back to some of the concerns that occurred with torrijos which is the most recent case that we have before us those itself there were no comments that were made at the beginning but more telling was the fact that the number of objections that happened a specifically in the instance case there were eight objections seven objections which were in favor  defense and the fact that those objections all of those objections dealt with the basis of observation of the officer of officer wilcox and all of those bases of observation of jackson's that were is included the proper standard should be abuse of discretion as to the not course of environment that was created that is not what happened in the instant case there was not a coercive environment and also speaking to the fact that during the preliminary hearing there was representation of one counsel by two defendants the people maintain that there were no antagonistic defenses that were called that occurred at available at the preliminary hearing what's most important is that there is a full and fair opportunity to cross examine and the people maintain that that is specifically what occurred here also would you admit it puts defense counsel a bit of a disadvantage when the state knows many more facts about allegations about the case the defense counsel does not yet i would i would point out that it's not an instance where the people know more fa discovery is something that is not standard during that limit hearing hearing juncture as long as there is a full and fair opportunity to be able to cross examine being able to get into specifically what happened but i have to maintain th specifically what happened in this case is that the motive and focus was the same at the preliminary hearing which is the initial i hearing in addition to the subsequent hearing the motive and focus were the same and none of those factors that were  reflective in twelve or is regarding the illinois supreme court's concern regarding the coercive environment or even the fact that there was some inconsistent statements that were not explored the people maintain that there were no inconsistent statements in the instant case that was found out about and at the trial court level and i see that my time is is is approaching and if there are no other questions for the reason state authority that's been cited or that defense counsel is aware of that would you know extinguish somebodies constitution right to contra confront the witnesses against him by being able to confront someone else other than the witness against them additional far as the prior burglary goes as or as your your honour's brought up actually it was made relevant to the trial where you have the owner of the building then at trial testifying to the condition of the property have after the purported first break in versus the second one and so it was made to be you know relevant factor at trial it's something that you know certainly counsel would have been able to go into but apparently there wasn't a consistent statement there is help because it can you point out your brief consistency that i'm referring to your honor is that originally there's been a police report the officer represents that engram stated that the first break in occurred sometime on the twenty first to possibly the twenty second that is different  denied making that statement at the trial so that something that something was something was not was not right and that would have been you know grounds that you could have such impeach the officer on and finally with respect to with people versus tor s the cross examination here versus the cross examination there couldn't be more more different there obviously counsel was saying i'm going into bias was allowed to ask the question to go into bias and as justice when stated you know once the once a witness tonight you know having a relationship or knowing of the father there was they couldn't go any farther with that but it certainly wasn't the court that the court was allowing them to go down that road that the state would attempt to distinguish our case from toys based on go into baez there was not an attempted to say you were right here where you couldn't see the back of that door from right here could you you know there was none of that i was trying to ascertain where in fact were you what are you actually saying that you saw at that point so this is was fact gathering trying to get the officer down on paper it certainly was not an adequate attempt for an effective cross examination couldn't lawyer be more effective growth larry i don't believe so at that point they have you know such limited information they're just assigned the case they represent both the defendant and the codefendant that the officer starts to vacillate on you know what he saw or where he saw it from they're trying to figure out what's going on in their response to the objection they're stating you know i'm representing two people i'm trying to figure out what's going on so you know it's based on he said i don't think counsel could have done more with the cross examination at that point without defining facts that weren't in front of them but those reasons we asked this court to reverse thank you