at my intention this morning was to focus on issue number one the issue dealing with the jury instruction ok the case on illinois holds that it's an abuse of discretion for the trial court to deny an involuntary if it were enough and could not by itself sustain a verdict pursuant to that instruction would still be enough that his conduct constituted recklessness rather than murder and the trial craig made several errors in the standard that it applied when it declined to instruct the jury on involuntary manslaughter first the trial court mistakenly equated accident with recklessness the the trial court and the state in its brief both focused on the fact that the defendant took a knife downstairs with him intentionally and that he slung it in front of him intentionally so his conduct somehow cannot be considered right and i think this shows a confused understanding of the definition of recklessness and your understanding would be that it looks through him well it dealing with that as well  correct so they raise at least even according to you or your correctly stated yes it certainly is a fact if you look i it's a factor but i believe there's evidence here that ordinarily separate to share accident comes in because you don't intend statler great bodily harm but that the court seems to imply that because he took the knife down intentionally and that he slung it in front of him testified at his trial that in fact mr cardoza he was sort of an odd phrase he said mr cardozo stuck the knife into his own stomach and and this would tend to indicate that as mr cardoza threw the first well but but then if if if we listen right are we negotiating for involuntary manslaughter isn't  the sense of any wrongdoing except perhaps whatever minor felonies would be involved in holding a knife well i think it created a question for the jury that he  resolution involuntary manslaughter or is it a toss up between in the sense versus whatever other category must be assigned to advance even that but not involuntary and well i think it's it's it's sad well when you think about the web that alcohol played in this in this incident you know it's quite possible neither of these parties were thinking clearly and it's quite possible mr cardozo may not have seen that knife as he that that mr hernandez head swung a knife in front of him as he started to throw a punch and and clearly the jury took that into consideration he was convicted of second degree he was convicted i want to mislead the jury was conscious of the fact that they were both under the influence of alcohol correct but it's very possible that the only reason they found second degree murder was because they they didn't have the involuntary manslaughter option before them we don't know what the jury would have done had they had the opportunity to be instructed on the lesser of andrew that yeah we don't  rational jury i think under these facts could very well could have found that that mr hernandez was acting with with a conscious disregard rather than knowingly or intentionally and he did have a weapon and the victim did not have a weapon i'm trying to think of a circumstance where your analysis of when an involuntary manslaughter instruction appropriate where it would never be appropriate to give that has been your analysis of the distinction between involuntary manslaughter and you think of a single case where involuntary manslaughter might not be appropriate id if you look at the definition of murder and five nine a one and you look at the definition of involuntary manslaughter and five nine three ok just the pen language of the stat as the statute defines the two offens it seems to leave it in our attorney and i include you can always make an argument that every murder case requires an involuntary manslaughter instruc with i'm so i'm not arguing for a standard where the involuntary manslaughter instruction should be given alongside the murder instruction all the time but i think there are facts here there were several facts in this record that would warrant involuntary manslaughter instruction and showed evidence of recklessness wouldn't that patient be one of the intoxication is certainly one of them it well where'd mr hernandez's inhibitions caused him to  well i believe the testimony on that was it was conflicting so that's another question i think the jury would have to determine it but mr hernandez tried to walk away from this fight several times at the fight started in the parking lot he tried to away he came after him shouting he wanted to continue the fight and he almost ran over him with his van and you know using his car as a weapon and so it's not entirely accurate to say that he never used a weapon during the oil slick jerky it was mr hernandez that he would be back he would he was going to contain the face despite he was going to come back to his house and he was going to come back with friends he told him he was going to come back with some backup and in fact to make good on that threat mr d knife in fact before in a previous fight he testified that he was scared by mr cardoza as tone it sounded very aggressive and he didn't know what he was facing out there he testified that he didn't know whether m the defendant in this case given the circumstances and the context in which she found herself in the immediate runup to her stabbing what was his name parker well i think in the building so he came downstairs and again will later be seen with a knife in his hand because he it was it would have been perfectly reasonable for him to believe that mr cardoso or his friend outside was was armed  small mr hernandez had no way of knowing whether or not mr cardoza was i'm still rather mr flores you know he mr flores testified that when mr cardoza was getting ready to throw a punch he was right behind inside joke and you're too young to remember the debate over what they were they were obviously thinking about why mental state accompanied the acts causing death because they submitted a question during deliberation about whether the acts referred to bringing the night for the actual stabbing so they were thinking about what mental state mr hernandez would have had at the various stages leading to mr pardo's as death and we don't know what the jury would have done if they had had the opportunity to be please the court this was a case where the trial her properly exercised its discretion in refusing an instruction for involuntary manslaughter which was not supported by the evidence that was presented in this case the evidence in this case on how much that i've read captured this language but at the very best he would simply have to make a profit but that doesn't mean that he would win as long as he as long as there is enough evidence in the record where is the jury decide to go his way that their verdict with the stand that's true but in this case there was no and why not he have his own disclaimer you have moment but if somebody plans to kill i suppose a pound of experience which tell you that they probably bring a more specialized weapon no reasonable person could have come to the same conclusion right based on the facts that were presented in that given situation no reasonable person could have reached the decision that the trial got reached in this case to deny an involuntary reasonable person ever reach the conclusion that an involuntary manslaughter and struck should have not been given so we're really not being you know the wing of the facts in this case are we were we're reviewing the facts in the light of a prior trial judge who has already made a determination ok that's a softball for you but it's sometimes forgotten because what you read somebodies involuntary them it's a question of who the jury would believe and we may be in the end as good a position of determining back as the trial it seems to me that it's justice you just you just hampered with our standard game not necessarily the medical evidence in this case established that the lung liver and heart were penetrated at night even the accident was in this case is the defending contended the victim fell upon the night ordinary reach or extension of the weapon it also penetrated his lung your honor it should imply that it was actually because there was damaged and in fact the defendant in his confession the videotaped confession to the police after he was extradited honor but the defendant also testified that he did not know that the victim without side with another individual and that when he did descend the stairs he came with two other people so it was not in fact a two on one it was a three on two where the defendant and his  and that he had he chosen to remain in his apartment nothing would have occurred if he did testify that he was fighting for the safety of his younger brother but his younger brother came out of the apartment with him to confront the victim so defendant's own theory falls apart based on his testimony and the testimony of switch roles with his friend leave the premises returned to his own clothing before laying hiding in his brother's apartment for three days before he fled to mexico where he remained for five years of course that triggered are motivated flight that's true your honor however in this case the defendant did have the presence of mind to attempt to conceal his identity while he was leaving because you know he did not he was friends with the fact that he but i just want to point out that we have to remember mr cardoza was in the middle of throwing a punch so he would have been coming at mr r hernandez quite forcefully perhaps forcefully enough to cause the knife to penetrate quite deeply so there were several facts in this record to support the instruction i won't go through them all again the jury should have the opportunity to decide whether mr hernandez behaved recklessly rather than knowingly or intentionally you have anything to say about my sermon on the mount with respect to the standard of review i didn't give you a chance to you know talk about that when you were here sufficient facts here that it was an abuse of discretion not to chew issue that instruction to the jury so therefore mr hernandez if there are no more questions from the court mr hernande