the court council in this particular case the defendant the poet charles downs who was defending the underlying matter where he was convicted of a battery upon a public way which is a felony in the state of briefed there are a couple but i want to address specifically before the panel this morning and certainly entertain any questions of the panel has as to any particular issues that the first issue i'd like to talk about is the t court's error in denying the motion to dismiss the the defendant had filed a motion based on clan us which it generally tracks substantially similar to braver's as maryland however for for different purposes clad a stealing specifically with discovery government possession of the government and that's our position in this particular case that the c t a was on notice they certainly immediately after the bus driver would see to it was not a party or the victim or the defendant in the case it's like a third party a different agency than the police department and in the course of their normal business that you raised the tape why should this case be dismissed and i would talk about that later you know they didn't dismiss mcadams with the end of sanction why should the case be dismissed when a third party who you know if i'm thinking if i'm videotaping something on the sidewalk and i happen to videotape a crime and then i flush out my phone and destroys why should the defendant get off because i believe something off my telephone if if in the job or not on the job that certainly doesn't make the calls i see if you telephone and it was and i suppose under that particular search well i would answer that if i could go back to explain what happens in this particular case after the event happens the bus driver in this particular case presses a button on the drive that's there in order to preserve that video otherwise it just keeps running and we know that from this case we know that from other cases that that's the way the c t s operates so the c t a knew at that moment that there was some critical evidence that may be there and the preserve of the police th were communication with the c t a they represented through the documents that they were seeking and obtaining this video and the defense certainly relied upon that and then when it came time to say that they didn't have that video they didn't ever get it from this governmental entity the c t a we issued our subpoena on behalf of mr downs and we were told it already been destroyed so in the answer to your question about what would happen in the event that a c t a employ using a c t a phone observes an event and captures that and communicates that to the police that they have this video i think that it would be similar to this where there is the obligation to preserve and to the extent we don't really know what's on it it's immaterial for purposes of brady because it could have exculpatory evidence on there in this particular case sometimes are complete videos that show lots of information sometimes they don't but the only person who says that they saw that was the officer at council even assuming that there was a duty somehow for the c t a to preserve the that violation a dismissal so if i if i may and transcript three which is the hearing i november second two thousand and twelve in that particular case judge alonzo the trial court found that there was a violation he had to have found that there's a violation because if we go to page a fifty one of that he says in terms of a remedy clearly the bus driver if she's a win this is not going to be able to say that's the guy my identification with corroborated by a video that i activated of course that's not anything the state would try to do or the bus driver we've tried but absent that i don't believe that any other remedy is appropriate so he's considering a remedy he doesn't allow the bus driver to identify mr dymes because the video has been destroyed so implicit in the fact that there's a determination that a remedy was required judge alonzo found that there was a violation so what we're here to talk about is what was the appropriate remedy for that violation we believe it's a dismissal because similar to what's expected of you can also couldn't the throat which is of the right to do what he thought would otherwise why does it have to be the case or i can't imagine a reason for the court to determine that a remedy is necessary if there's no violation so although the transcript isn't implicit that he's found a violation the fact that he's considered a remedy subpoenaed the tape until december twelfth we didn't subpoena the tape until we knew that the police had not done what was expected of them which was they identified the video use a piece of one of the tape you've learned already that it's been destroyed is that with when subpoenaed that videotape it was too late we were we were told by then that the c t a through its regular process and destroyed that video but the state that the police had said that they had seen or w case that we know with any certainty because no one produced that video except the officer said that he reviewed it and he says that there wasn't anything on there however we certainly would be entitled to to know whether or not that's true or not true because the police in trying to fashion a case against mr downs have you know it certainly would behoove them to not turn over evidence that would be exculpatory and they should they certainly have every reason to get that if it were in didn't the evidence from the about entry here not not from the initial pretrial discussions with counsel on them because there were some states made by the way correct but at the hearing the evidence we did not hear from mr higgins possessed a videotape and he never saw it and to the best of his understanding from talking to officer barber she never was arrested nor did she ever see him he also little locust hello also testified that video absolutely there is no evidence of in this particular case the despite the knowledge that this video had been preserved that the police didn't retain custody or control over that video so how do you where you were due process violation or discovery sanction if you can't tape is not in their possession control walking the destruction be of a violation of discovery and that's that's an interesting that's an interesting question because what we as defense counsels in the in the trial courts fin is that the government meaning the state's attorney's office does not always from the very inception of the case have all the evidence they require the police to provide them whatever keeps coming up to them and that they have in their possession and so that's that's why in a lot of these cases we continue to get evidence for quite some time but that's the  about the state's attorney's office was in possession of it or the police i don't disagree that i think we're all in agreement that the police ever took custody from a known tape that was in another governmental entity the government the people  their possession the c t a but council there could be any number of governmental entities that could be in possession of any type of evidence in any type of case that isn't your argument  and the boundaries even of discovery and discovery violations and the duty to disclose well i don't believe it does because it it as it relates to discovery the things that have to be turned over are those matters that are material and are relevant to the case that is pending not that it not that a governmental agency has an obligation to expect that somebody is going to be charged with something or to anticipate that charges may happen in someone's we've got to preserve things all the time for a certain period of time until we know with certainty that no one on this particular day was charged with anything that's just not the case in this particular facts of the under these circumstances the police were aware that the c t a had preserved a video that video may have included scope atory information or evidence that was material in relevant to the impeachment perhaps of the bus driver what brady versus maryland as well as quite a stand for and what point is the defendant responsible for preserving his own evidence and if you have a third party who has potentially exculpatory evidence when is it the burden on the defendant to go get it it's a great question  if it were known at the time that there was a bus and it were not known at the time that that video was referenced in reports as having been preserved then certainly would have been obligation requiring of mr johns to do was to double over every single aspect of the police's investigation and to expect that they are not going to get those things that are referenced in the reports and i don't think that that's a fair or that's not a fair assessment for a defendant they have to anticipate that the government is going to destroy evidence and so that puts an affirmative obligation on the defendant to come up with what would be the core area in constructing the jury in this particular case there are two instructions that are critical and one is where the court gave that instruction and that's a citizen's arrest instruction and the other is the court's unwillingness to provide the defendant his theory of the case of the jury's instructions as this court knows instructions are very important to give guidance to a jury defense instruction it's it is intended to be an opportunity for the defendant through the instructions to explain why he intentionally made contact with somebody and ok i'm just trying to cut to the  approval upon mr n a dog a's conduct making it proper for him to have done what he did in this particular case and that's just not ok by suggesting that mr n a dog a was allowed to make arguing our case but it likely cause confusion to the jury because it wasn't germane to the issues in this case it was a side issue that the court injected sue a sponsor a there was no evidence that mr believed he was making a citizen's arrest there's no evidence that mr in a dog a way was attempting to do anything other than to get mr downs to stop and look at the window and so the instructions are intended to not cause confusion in this particular case we believe that giving that instruction absolutely would have caused confusion to this jury and and i think that the timing of deliberation is important i suspect  all just spit balling whether or not the jury concluded it quickly or not but i suspect that this jury concluded quickly that the aggravated battery related to taxicab taxi cab driver stance was done a limited right away because nothing about this case related to his status as a case a good driver i suspect also given the evidence in this particular case that the court that the jury quickly dispense with the great bodily harm there was no evidence of  harm so what could possibly tie up the jury for as many hours as they did to deliberate this particular case the jury instructions certainly are the type of things that can cause confusion and this particular case we believe the injection  the trial court of this instruction is one of the number of errors that would require a new trial so as to prevent confusion and allow a retrial on the evidence how full is your argument that given the confused it is certainly evidence potentially of a problem we're getting a verdict because we can't go back and ask them questions about whether they were confused or not confused i don't know there's very limited evidence and particular case there's maybe three hours things that went very quickly and then the did the jury deliberated for an exceedingly long time given that and in fact i think around that the six o'clock hour that's when my partner mr muslim had requested given the time of deliberation already that a i negligence instruction was should have been given the criminal negligence instruction should have been given this particular case to allow the defendant to argue his theory that if the jury believes it's negligent and not intentional then they must acquit him  i don't disagree that you can't argue that but the difference between being able to have a defense theory of the case in the instructions and not having that theory of the case in the instructions is a game changer because with the with the clerk instructing the jury about the law and counsel whether it be the state or defense counsel being able to point to the instructions specifically in order to give guidance to our theory based on those instructions is is so important can't be understated and so the fact that we couldn't argue to the jury and say ladies and gentlemen the jury are also going to be receiving receiving instruction on negligence and that and that instruction reads this and you're with you that it was more simplified in the sense that it omitted our instruction but it was didn't make things easier for the jury to understand because if the jury had the instrument you could argue next to me argue negligent but but your honor the the difference between simply arguing and arguing with being able to point to what the law is that the judge is going to instruct is significantly different that the state would the state would require the same thing they did they would want the instruction for what they have to prove to be shown in the jury instructions and not simply argument if there were some i can't fathom it but if there were some instruction that didn't fully apprise the jury about what had to be proved through the instructions the state would jump up and down and say your honor you're you're going to be instructing the jury about what the laws in this case and what we have to prove and we need the jury to its wisdom believe that the negligence instruction was only applicable to certain crimes that may exist out there where the issue of negligence they were included that in the committee comments most certainly but in this particular case it's a theory of the case it was the theory if mr downs in this particular case and we believe that we are entitled and by giving that instruction there is no prejudice whatsoever to the state the only person being prejudiced as mr downs by not without case there is no further defense so we didn't have any obligation in this particular case you get my point i mean if if that jury instruction is in there that could confuse the jury as to as to what the state has to prove or even worse for you it would limit your possible avenues for exoneration to just one versus anything other than knowing that i understand it better for you that they we absolutely categorically don't believe that not giving that instruction in any way in there to the benefit of mr downes because definitional theory of the case wise the jury only heard us making our arguments  compelling as we could make them to them and without the judicial stamp of approval about what the law is it makes all the difference in the world and so on and those two jury instructions we believe that this requires a reversal  in this particular case what we have done is different than any other cases that have been before any other trial or appellate court in the state of illinois on the issue of whether or not the statute aggravated battery based on the fact that it took place on a public way we brought evidence before judge one so showed him bet just by brief examples there could have been a any number of other ones that this is an arbitrary statute resulting in an arbitrary  charge but we absolutely believe that it is on its face it is unconstitutional there are when you try to think about where might  a battery take place that isn't in a public way out workplace where the public is available to go very few if it's in a home it becomes a domestic violence issue if it's not maybe back in someone's office or the public is not allowed to go otherwise what it allows the state to do is on its whim depending on how it wants to charge to charge the exact same act two different ways one is a  both fundamental and non fundamental rights as well as you know settling some with a felony conviction forever in this particular case i think that unless the court agrees with me on the issue of the certainly dead that is in part i think it addresses other issues as well as as well as that due process i think that the fact that as well in the sense that  i think i think when this court considers that it has to look to what the facts were that were before the supreme court on that very issue in this particular case we have much different facts because we have the evidentiary record about what what chief judge evans required the clerk to turn over to us in order for us to challenge the constitution of the statute and they're like i said before there hasn't been any other court that has been confronted with the evidence related to the statute and why it is and why it should be deemed unconstitutional and although the legislature can can craft it saturates and believes that that it's doing the right thing and  together a fine statute it's the job of this court to make a determination of whether or not it passes constitutional muster muster and i respectfully suggest that it absolutely does not and we can stand on our briefs on the the other issues as well as any other thing that we related to that  defendant and testified to the battery in this case there was no prejudice here because the video would not have been a scope torrie the c t a video would not have shown the battery at the hearing on the motion to dismiss it was determined that the bus most likely was facing in the wrong direction and would not have captured what transpired in the as far as the battery was concerned there was no discovery violation here because the video was never in the possession of the chicago police department  officer never testified that he reviewed it when law enforcement did not create a c t a video in question much less destroy it defendant's reliance on class is misplaced the trial court did not abuses this question by denying defendant's motion to dismiss implant as a file a motion was filed for same sions and the court found that the police department who had created the video have in fact sat was that he was not going to dismiss the charges which is what the defendant had requested however in keeping with the holding class he said if for instance a c t a video were to surface then not i e show white the c t a bus driver who testified could not in any way kharab corroborate her testimony using the c t a video but he felt they had to dismiss the charges against the defendant which was what was requested was gross exaggeration of the whole thing in class which infers that you don't know there was no discovery violation found because the police officer testified as you stated justice ellis that  yes i believe he was they they based their motion to dismiss and quietness and i believe what i don't think he was fashioning a remedy he was saying however if a video did surface that it couldn't be used but it was to dismiss that the boss was most likely facing me in the wrong direction but it was unnecessary and immaterial what the c t s it was not exclude tori because it wasn't even it didn't capture the battery there's never been in  the battery down the street and clinton it was facing the wrong way the bus so it's and it was unnecessary considering that he had two people sheldon smith the pedestrian who was coming the opposite way on the sidewalk  denying defense motion to dismiss based on class with regard to the jury instructions specifically the private person's arrest instruction the defense in this case was challenging the taxi driver's actions implicit in that was the fact that the taxi driver had no right to try and stop the defendant after he broke his windshield there was no prejudice here the defendant was acquitted of two of the three charges the jury had to make a credibility determination to the defendant by terri the text you drivers windshield and consequently deteriorate have a right to try and stop the defendant jury instructions are within the sound discretion of the transport and in this case one because the defense was questioning the taxi driver's actions in trying to stop the defendant and bring him back to see what he had done to his taxicab so the standard  that it's the trial court's responsibility to reasonably give any jury instruction that correctly instructs the jury on all recognize legal issues arising in their case so then you thought the jury instruction was  in this case it was appropriate given the fact that the taxi driver was trying to stop the defendant after he had broken his windshield and then further hit him in the face with a briefcase knocking him in conscious breaking his nose and causing would most cases it is yes that's correct there's an example before it's always yes affirmative sense but in this case because it was an appropriate under the appropriate because it was in theory correct and it was it was an issue that it arisen in this particular case it was an unusual set of circumstances and judges one of those said this is a this is unusual that i would get this instruction and even discussed it with the parties  and i believe it was appropriate under these sets of circumstances where the defense is challenging his right to try and teen defendant with regard to the negligence instruction oh i'm sorry they wanted to believe that then the taxi driver had the right to try and stop the defendant and also in that instruction it says that he can reasonably he can use reasonable force that he believes  defend himself from battle may harm while making the arrest so in this case clearly he was hit in the face with a briefcase knocked unconscious had his nose broken i believe that he was question in giving this particular instruction i believe it was reasonable considering the fact that the defense were the ones that were stating that the that terri the victim takes your driver have no right to try oh i wouldn't say that attention to it because i believe the jury had to make that determination whether they felt that they did the taxi driver was justified in trying to stop the defendant i don't think that showed any prejudice on the part of the pointed out and that an element of anger and justice house an element of aggravated battery is that the defendant intentionally or knowingly cause i believe her the defendant would not have been found guilty if the jury determined that the briefcase defendant's briefcase accidently hit the checks you drive her in his face which is what the defense was arguing and they did argue that in the court so therefore the trial court properly refused to give it negligence jury instruction in this criminal case  be a theory of defendant's case is not is it's not proper because this is a criminal case and the defendant would be acquitted of the charges if he was found to be negligent as justice has said anything beyond that however i do believe that trial court did not abuse his discretion in giving the personal private person's citizen's arrest instruction because in this particular set of circumstances and i agree with you that the defense theory was that he was tricked you know the but i think that they say that it was appropriate in th instance because it applied to these facts the negligence instruction does not but the fact that he was the taxi driver is trying to stop the defendant i believe in that case it was proper to give that instruction defendant was constitutional with regard to the fact that the jury had and deliberating for seven hours i would assert that the want to talk about is what justice alice had raised related to certainly a perception that the court has that first of all there is no issue in this criminal case related to what happened with the window there's absolutely no issue he hasn't been charged with the property crime he had been initially i think the complaint had it and then that wasn't pursued so it had nothing to do it the only reason that came in was the court was seeking to allow essentially putting the stamp of approval on the actions of mr and a dog giving credibility to him and his version of events and to the detriment of mr downs a jury can could be use they be using  say wait a second the judge is instructed me that if there was a crime committed the breaking of the windows that mr bennett doggett was permitted to stop mr downs and we decide if he's willing to break a window would he be willing to bet or a person that could be a problem for the jury to consider the fact that what justice elsa talked about with the what the ways that was supported by evidence having nothing to do with mister i i respectfully disagree that given the instructions in this case that that that's necessarily how the jury reached its conclusion i think that the citizens arrest instruction would have actually had an effect on the considerations of the jury globally and had created confusion it could have been and likely was to the detriment of mr downs and to justice cobbs your comment about the  the state a century trying to argue out of both sides of it's now about justice alonzo got it right when he gave the instruction because that's what the defendant was arguing that it was not proper for mistretta diag a to be stopping him  but at the same time saying that if that's our theory that it wasn't proper then similarly we're not entitled to the criminal negligence instruction and he can't have it both ways is the court going to instruct on what  be used as a prosecutor's instruction in this particular case and moreover we believe that we can we can now rely upon the negligence instruction i think that citizen's arrest instruction should not have been given and it was objected to and i believe th negligence instruction was necessary because this is a state of mind crime the jury was entitled to find out about the state of mind of mr and doug and get instructed through the jury instructions about what negligence means what something less than the intentional conduct required of battery means finally and you know if i've exhausted my my time the the one of the questions that just as housing asked originally related to the motion sickness was given what they're talking about in although it is not explicit through that call equate he found that there was a discovery violation and in some of the basis for that is court begins all right thank the motion is going to be respect we deny it it's asking for an extreme remedy here right so it's already talking about remedies there is no question the c t a didn't do what they were supposed to do and the c p d perhaps should have done more in terms of follow up but this would be a massive expansion of class and i don't believe it would be a massive expansion of planets but what the what the court is saying is the government c t a had to keep this is the chicago police who said this is existed probably should have done more to get it and i think given what the report said initially the defendant had a right to rely upon the government getting what it said it had and was going to be seeking before he had to subpoena those records in this particular case given the nature of of where things were at the defendant did subpoena union station video turns out there wasn't anything there that was shared with the state's attorney's office the video that was included as part of the record on appeal came from the metra headquarters building and that shows the confrontation does include the the contact between the briefcase and this trade value but it demonstrates everything up to that point and while i wait the c t a person testifies that she didn't believe that the video was going to show anything or would have showed anything she was in the middle of the intersection trying to make a term so the so then video may have included the type of the exculpatory evidence that brady intends to be produced and could have been used for impeachment of both ms white and the third party witness that was there as well and so for all the various reasons we ask first that conviction and sentence be vacated and the matter dismissed secondly we