Whether the defendant's constitutional right to effective assistance of counsel was violated due to counsel's overall health and performance

Issue Presented for Review 1.)Does the defendant Russell Frey deserve a new trial or conviction vacated based on counsels overall health and his performance overall ; violated defendant'@ Frey's constitutional right to the Effective Assistance of trial counsel? ; ; nee ’ , 7 ; . . The state acknowledges that when it’ read the letter to the jury the state added the phrase,"so they can be around children again," despite the fact that such a phrase was not contained in the lett: 1 er.State brief at 21) According to the State,there was no #\in8 error here because jury probably inferred that the additional xEA phrase was merley the State's opinion of what would be "the logical implication of the defendant's proposal" and the jury was not misled because the letter was ultimately published to the jury (State Brief at 21) The State should not be permitted to add facts not in evidence in a misguided effort to tell the jury what the ; defendant meant to imply.See United States V. Garcia,439 F .3d 363,366-68(7th Cir.2006) (THE Presumption of innocence is violated -.. when the jury is encouraged (or allowed)to consider facts which . have not been received in evidence"). The State then argues that any error in admitting the letter evidence was at 21-22)In doing so,the State asserts that it does not have to prove the srror was harmless beyond a reasonable doubt because this issue is not concerning a constitutional error.(State Brief at 21) . Rather, the State argues,because this is an evidentiary issue the question is whether there is a “reasonable probability...that the jury would have acquitted the defendanzt absent the error.People V. Pelo,404 I11.App.3d 839,865(4th Dist.2010),citing IN re E.H.,224 ILL.2d Brief at 22) The State's point is well taken as the language in E.H. sense plain.224 111.2d at 180.However,it should be noted that the reasonable doubt standard has been applied to harmless error analysis involving an evidentiary issue preserved for review.See People v.Burhans,2016 IL App(3d)140462 32 (harmless beyond reasonable doubt standard applied to erroneous admission of testimony).And,as argued in the Opening Brief, this srror did not impact Frey's constitutional right to a fair and . impartial trial.(Opening Brief at32-33) In any event,Frey maintains that the error was not harmless under either standard where . two jury notes show that the evidence was at least closley balanced and two jury's who believed Frey was not proven guilty on all three counts may have been persuaded to find him guilty based on this letter ; Brief at 35) III. The cumulative effect ::of the errors in this case deprived Frey of a fair trial and denied him due process of law. ; The STate makes no argument regarding this issue ; . in its brief. : ® r 7 oe .