our next case is case number four fifteen zero five zero seven the people of the state of illinois versus david masterson for the count we have mr copaxone is that how you pronounce that sir ok that's ok counsel thank you and may please the court my name is christopher coke has an ever present david masterson we argued three issues in our brief say i'd like to focus my arguments on the first thirty issues in the brief that is regarding the nine one masterson acted in self defense whether reasonably or unreasonably and the answer to that question really turned on the credibility of masterson who is the only person in the apartment who could tell the jury what went on so that and the testimony that masterson himself was startled linda raymond the other neighbor who testified at the trial testified as to masterson's demeter she said that masterson was pacing back and forth he was quote frantic  but it's not dispositive because to some extent the excited utterance theory presume some sort of self interest but the theory is that you're giving the statement so quickly after a very startling  you know to some extent you know that would sort of swallow the rule if that were the dispositive factor masters is asking if in fact if you don't reference that fact it is mentioned those three factors startling event time to fabricate relates to the occurrence and the as to the self interest here the statement doesn't really go to any self interest is trying to get medical aid but it's all but it's in the context of him trying to get medical help but as we know as he knows and as we know now by that time the victim's already been hit at least twelve times in the head his brains have been spyder he's probably well  self defense case but you know at the time the passions maintained that he was justified in what he did so any sort of self interest are trying to exculpate himself from this just as a president here can and that's what i don't understand what you're saying because it was there you can see knew he had knowledge in this county death and so he's already potentially trying to frame this to look like you know i'm defending myself i'm afraid of him even though he knew there was no chance then i may see return your approach to place a tow where defendants tried to get in under the excited utterance rule and the courts didn't didn't have any issue with the fact it was the defendant making those statements and that the defendant might have some sort of self interest  statements were just a lot of other friends and to a large extent the through the issues that i think you're getting at you know only go to the weight of this statement so you know defendant might have some sort of self the prosecution in its objection said that it should not come in as either an excited utterance or as a prior consistent statement nor was it offered in that way by defense counsel defense offered i number of things that occurred basically the crux of the decade he did they really argue recent application to it seems to me that the state was basically arguing that he started to try to paint this picture of him being right the victim the chair these are all these are all things that you now claim happened the point being that masterson's not making these poor self defense claim until the point of trial or was it that he wasn't making self defense claims prior to that time or was it that you're now telling us new details to support your already existing self defense claim that you started basically from the beginning of the crime but overall point is that the defendant did not give that the threat was fabricating really the core of his self defense claim those actions that occurred immediately before he struck twenty eight that those actions for fabricated i'm at the time of trial so having made that allegation masterson was entitle to rebut that allegation with a statement given before that no he was saying one other point with respect to the prior consistent statement that is really important sort of goes to what we talked about earlier the trial court in the state argued well he has this motive to testify falsely there's some self interest here but the case was made clear that under the allocation of recent fabrication wrong it's not important whether there's a motive to testify falsely that's a separate exception to the prior consistent statement rule and so here what matters is if there is an allegation of recent fabrication and you have a statement that predates that allegation and is it not true that a prior consistent statement rebuts the inference of fabrication only that these are two separate exceptions so you look at them separately you have an allegation of recent have occasion all that matters is that the statement predate  ere these are two separate prongs two separate ways to get in a prior consistent statement and to the plain language of the rules of evidence we should treat them separately distinctly  this court has no other questions on the first issue i suppose i'll turn to the third issue about the exception of the ruler in this second factor the state was required to prove beyond a reasonable doubt that the offense was accompan determining whether a particular case justifies this factor and allows the judge to give an extended term sentence as happened in this case of natural life the highest sense we have enough and among those factors perhaps the most truck was going to do so there was one statement to that effect by melinda rainman the neighbor who testified she did not give that statement to the police when she was first  so there's a credibility issue as to that particular statement and the general point are that i mean the overall circumstances of this is not one where masterson went out and sought out the victim didn't break into the victim's home he wasn't seeking out lying in wait looking for her particular victim this is something where turning a came to his home invited in the situation erupted rather quickly so even if you accept the truth of that statement on this is not a case where someone is premeditated in doing a murder in a premeditated planned way this is also not a case that involves any torture head purpose well they may be pearls basically in the same location right so this is not like other cases we have cited in the brief where the defendant has inflicted injuries all over a victim's body over the course of hours or day and this was very swift happened the situation dropped it quickly and the blows were all to a single location on the body granted they were just twelve of them are severe enough to bring about the victim's death but it wasn't the kind of  actually still in the state of di when it stops strikes me that death nonetheless occurred relatively quickly this wasn't something that happened over the course of even an hour i mean this happened very briefly element of provocation here where masterson's not the initial aggressor where twenty eight sort of attributed in a sense to the situation that rose also officer who came to the apartment then fully cooperate so this isn't the sort of crime that's devoid of compassion do you think that maybe it's his own comments that the tape that he made comment showing what his you know statements to everyone show is that he believes he was justified in what he did he thought he was acting in self defense he seemed to think that because someone would leave his home he had the right to be just recently unless of course as do other life by this court the initial position of the state of course is that the issue of excited utterance was not preserved the fact that the of the term was raised by the state  not preserve the issue was not the basis for the introduction of evidence by bended there's no evidence in support of that motion argued by the fence counsel nor is anything raised in the post trial motion that would suggest that there was a discussion of excited utterance where the more the application simply doesn't apply the inherently liabilities that are associated with an excited utterance simply don't exist in the sense that there is nothing about this circumstance that time to think of what he just did think of the circumstances of what he just did and try to come up with some plausible explanation for it quite honestly it's not there i don't know more open and shut case that i've had in thirty five years of doing this  this gentleman buried himself it's his own testimony i mean his testimony was completely supported by the physical evidence at the scene but it's his own testimony that removed his suggestion of self him victim did not threaten him you know it this is simply not a case of self defense this gentleman the defendant grabbed a twenty nine sled by heat this man to death striking him over twelve time of trial still does not rise to the level self is the fact that this victim may have been standing prior to the initial blow fact that the victim may have said what are you going to do about me leaving it's hard to imagine the barbaric nature or what it would take for another human being to strike someone that many times it's one thing to shoot somebody perhaps in his anger or some type of difficult to fight course attempted to do so they have looked at the language various factors trying to define exceptionally brutal and heinous include unprovoked nature of the attack this certainly appears to me to be a book i mean yes the gentleman would leave press it but how about calling the police then how about asking the neighbor first distance how about just leave you know i did this suggest recourse other than to find the actions of this gentleman extremely brutal heinous and the court was appropriate and putting him away for a long period of time or to protect rest of us from this type of psychotic behavior no questions from the court and mr longer indeed you have some additional briefs you wanted to file with the court today regarding the motion thank you your office had filed as far as the original briefing he was missing a page you know i don't know that we found anything like that or not just but i will apologize if my office did follow up with that i don't have it with me saturday noon but i did notice reading my brief that i don't know what's going on here i don't know  it's thank you your honors as to the correction but briefed on this far as i recall the motion referred to an error in scanning so there was a line or two that had been missing so this is a page five or something i believe it was a line  the rule books to determine whether the statement was made during the stress or the excitement mediately following the startling and bad and that's what we have here we have the situation arises abruptly we have a nine one one emergency call that takes place immediately afterwards and in the course of trying to get aid masterson makes a statement really unprompted about violent and threatening nature  one call a couple of minutes after on the observations taking place that's what excited utterance really was about so because he was under the stress or excitement he didn't have time to come up with a possible explanation as to what happened and so should be admitted under that theory as to the you know issue of self defense and whether this was self defense it's also important to remember remember that jury was instructed not only on self defense but second degree murder of her imperfect self defense so the jury could have found that there was no objective lee reasonable basis to resort to self defense but that  respect to as to the plane error argument we would say you know the state is the one who checked it here to the admission of the nine one one call it's not any different than the ordinary garden preserved for review that's what's happened here the court had the opportunity to litigate and to rule on these so we would maintain that this is sufficiently preserved for review as to the third issue about sentencing and spent i'll grant that the injuries look a little gruesome i'm going to be disturbing to look at that your severe injuries the fact is that this was a that that occurred by a those are injuries that weren't deemed exceptionally brutal or heinous and indicative of wanton cruelty such that the defendant merits extend term sentence if this court has no further questions