was preparing for today's discussion i saw one overarching theme that touches on all of the issues and that is whether it's an absence of evidence or the absence of proper procedures so what i would like to do today is focus my time on three of those absences those discussed in the briefs and issues twenty three and five of the st of these an issue to deal with the absence of evidence regarding the reasons and that deals with the absence of evidence to support the state's closing argument and there were two big flaw with the state's closing argument st it's discussion of what it termed the cycle of abuse and then nd it's however there was no evidence from any sort of expert that was introduced at trial regarding typical behaviors of people caught up in abusive relationships and this course the court addressed a similar issue in people where the state similarly argued about typical behaviors of the abusers of children and this court held d that that was improper when there was lack of any evidence a deuce a trial regarding those behaviors from any sort of had previously been battered by mr robinson in february of two thousand and seventeen and that he had put her in the hospital on that date miss smith never testified to that she said that she did not remember whether he had struck her on that date and that the reason that she went to her the hospital that day was because she tripped over her own family now regardless of whether that testimony was true or not it was the only evidence regarding that hospital visit that was and to afford to send an opportunity to explain and support his claim here mr robinson never received such an opportunity and it matters because we don't know the strength of what that that alibi pla that's not really the case without knowing who the alibi witnesses were what they would have said no judge to make that call what if the alibi were you know made a short statement that she did not learn about the l by witnesses until after trial however mr robinson then tried to explain to the judge what efforts he had made to inform her before trial we don't know what they are because the judge wouldn't let him finish a statement but it kind of depends what those were if mr robinson has repeatedly called trial counsel dozens of times and she hadn't returned a call and seventeen incident that was objected to and preserve the course about the cycle of abuse counsel didn't object specifically when that statement was made so it's arguably not preserved with regards to that illinois law but the courts have repeatedly held that it is not an element of the s s a does not have to be proven to the jury beyond reasonable doubt that's correct so what is your position what did the state omit what did they not present at the evidence in the pre sentence investigation regarding the prior dui yet and so it would not be appropriate for the trial court to consider that the information any evidence regarding why he was revoked the state about me the burden regarding the and having on it and what is the state's burden with respect to the enhancing element i mean we know they don't have to prove it beyond a reasonable doubt indication that the t s i right or obtained any documentation from the secretary of state regarding the status of the driver's license we simply have the recitation of facts regarding his criminal record so i need on the abstract and yes and that's part of the probably have in this case is that there was never a complete abstract in the record so we don't know whether that restatement if there a and upon receiving the revocation and secretary of state's office the secretary of state was mandated to revoke defendant's license as a result of the dui until services and fines and fees were completed at which point he could then have thousand seven hundred dollars i had failed to complete any of the service the dui statute and had simply done nothing to advance his his driving his driving under the influence  offense and then subsequently this revocation offense they're driving while revoked fence falls under that dui i mean i think it's pretty clear based on the evidence that we have in the p s side the fact of the revocation was still a fact based on the abstract that was admitted that all this falls under the an abstract merely proves that the revocation was still in effect but i submit that even without the rev in the abstract the p s i itself through defendant did nothing to address any of the issues or any of the services or fines or fees that are of any other reasonable explanation for how to find it could have received his license back legally the only reasonable marjoram conclusion as of the revocation was still in effect based on the p s i and then we have further proof based on the fact that the abstract w attached that says the revocation is still in effect it doesn't say specifically that the revocation was as a result of the dui offense but we have all the rest of the information that proves that defendant did nothing to to establish to fix the problems that led to his revocation and would never receive his license back under state law so so on that point i want to go back to your initial argument where you were talking about the do we need to do t statutes absent any other indication otherwise as to how what governs the case and in front of the court so this it wasn't required to provide the law to the court as an element of proving that the sensing enhancement should have  and eighteen that was still relevant law and defendant hasn't received a correct statement of the situation and defendants provided no information that would seem to disprove that obviously understand it's a state's burden to prove this but of the information that was before the trial court proves that defended in fact owed significant assessments and had not completed services i'd like to pray that it's not just money it's any of the required services offense but i presume that the state's attorney looking at the situation and what was in the p s i assume that that was sufficient proof to prove that it was based on a previous duis if the court has no further questions about this issue i'd just like to move on evidence that was contained record trial prosecutor are that the reason that miss meth contradicted herself from what she said at the scene and what four eyewitnesses declared obscene and went to court and dynamic was the reason for why she decided to testify as to the opposite of what for eyewitnesses it in court and what she said of the scenes to the officer and the reason that we can because  can the reason that we can tell that this discussion was not one of a general issue amongst domestic abusers that was actually about their relationship is that the prosecutor in this case specifically asked miss smith about her about she tacitly admitted that she had got had another physical incident would defend it and i'm reading directly from her testimony so the defendant get physical with you on february st two thousand and seventeen there might have been a situation that happened did you have to go to the hospital for that yes had defendant got mad have you gotten enraged at you before you went to the hospital it could have happened they could have we could have gotten an argument again that's might have been what happens she tacitly admits on the stand if they were two thousand and seventeen that they got into a physical engagement in that she had to go to the hospital for it and then later on the stand changes her story to say oh no actually i'm just clumsy i was wearing long pants i tripped i fell over in iraq and i think all of that is fair game for the prosecutor to comment on the specifics of what you just mentioned but then to refer to this as the cycle of abuse during that there is some sort of  of common knowledge that the jurors are aware of this concept the cycle of knowledge in the prosecutor in closing you know says we've all heard those excuses before  seems like the prosecutor is talking about incidents as part of this cycle of abuse that we haven't seen row evidence in this case you leave dishes in the sink for too long you forget to play a beer then things get physical  it seems like it's mild within the person who flies into a rage he hits the pontoons if you get hurt you have to tell the people at the hospital that he didn't do it i mean where is any evidence related to these specific incidents that the prosecutor is when our closing argument is that the the future was referring to the realty the relationship the two of them had and specifically referring to what is evident both mr smith changing her story about what she said at the with her and whether or not it was an issue of her trip that that discussion of the cycle of abuse and we've seen it before refers specifically to what very dynamic is not some global discussion of what most people in domestic abuse cases or domestic abusers dynamics are and what how abusive relationships normally operate the way that i take that comma is that miss meth and defendant have a clearly established dynamic he abuses her so the fact remains that apologist that that they're that discussion is about them it is not about domestic abuse the difference from the cases that defendant cites for gardening the  case involving sexual abuse in general the trial prosecutor didn't say well you know in every single domestic abuse relationship this is how this operates the woman will simply be abused and she'll go in court and she'll live because she can't abusive relationship and abusive relationships make you lie harder defend your abuser that's not what with the statement was here about and this is not this was not in the absence of any proof of this dynamic because the manic is shown based on how she reacted at the scene versus how she says things in court and how she changed her testimony about the feb twenty seven thousand incident while in the middle of her testimony just as right regarding the question about the dishes and you know that particular been amec i think what she was the prosecutor was trying to do was to add kind of an illustrated example or flare kind of for what could have possibly triggered the february two thousand and seventeen incident  i don't think that that rises to the level of any kind of prejudicial comment about the general nature of abusive relationships because we have an insincere which was discussed where defects were mis meths passably admits that she got the right part of a sentence i believe you're right ray she did go to the hospital right your honor so that that that that was kind of an illustrative example because miss myth simply on the stand refused to tell the truth about the incident after tacitly admitting that it wasn't abusive incident and then changing her story in the middle of it that that was just kind of illustrated example of what that dynamic would be like that even if that particular portion about you know a hypothetical example you know where you have the dishes and and you know you don't do the dishes and then you're the abuse a partner gets mad and decides to get physical even if that is not entirely within the bounds of what the evidence shows in this case i don't think it falls in the kind of category where with like in the case of the defendant who the prosecutor is is referring to the general situation involved in domestic abuse cases or  general nature of why people would lie on the stand for their views or i think it goes specifically that that comment doesn't fall in that category of what the courts have said is improper for the prosecutor and then again i'd like to point out that we have an address just the general nature saw the abuse happen in the middle it was in the middle of the street in broad daylight and we have pictures of the of the evidence in the case so the idea that a comment about the dishes or something like that hypothetical idea it would somehow prejudice defendant i think is just it is illogical based on the wealth of evidence and the number of people that testified against defendant in this case are the factual merits of an argument that a defendant is making and as a joint ineffective assistance of counsel claim one defendant postulate something that is all stay slee meritless the trial court does not have an obligation to complete or at the trial court's inquiry does not have to continue further when someone when a defendant makes a ball face lee meant it was claim like there are were alibi witnesses that my my way or didn't call in the case and we can tell you that's bald face because four different witnesses saw the defendant beating this woman on the side of the street two of them identified defended as the person doing it defendant was found in miss miss vehicle immediately after the abuse incident occur so it is of course a completely meritless claim the idea that there are alibi witnesses that are going to come out and somehow prove that defendant was not at the scene of the crime and the end of the tr inquiry doesn't have to go any farther because there's no need for the court to entertain america's claim that's just obviously meritless it would be the same as a defendant who walked into the room and said jesus christ came down and bolt at me and that i couldn't have been there because i was watched fifty thousand miles across to the other side of the of the world the court doesn't have to continue inquiring well counseled as you inquire into the validity of the defense claim it i the court has no further questions about any of the issues in this case i would simply ask that your firm a little course decision thank you us can say no but obviously not well we don't know because the court didn't ask that question who are your alibi witnesses what's your alibi it's just as likely just as possible but it was something that could have been more credible why i was under arrest that day here's my alibi witness the arresting officer if that's the case then that turns this case on its head and these eyewitness identification suddenly not so strong now was it probably something somewhere in between my example and mr garrison example sure but we don't know unless the judge asked the question so that's what we're asking this court to send it back for the judge to ask that question so that we can actually make a well reasoned terminations o does it really trying a case on its head or or does it at the most point to confusion on that night i mean is there really anything that would suggest this didn't happ the victim saying this occurred on this one day it's the victims and it occurred on this one day it's the police officers who are all the seen on that one day it's their dashboard camera footage from one day's light if somebody a battered miss meth it happened on this particular day and if mr robinson was not they will hole you have the bend the person who  there's no need to go any farther with this but do you say no that's not the case it doesn't matter how strong the case against the defendant might have been the  going to be evidence of the defendant you know there's going to be able to convince well regular oh yes definitely you definitely did it so if we were to apply the state test that oh well if we think he's guilty we don't have to ask any questions the