defender represent robert j chapman the fifth appellant asking this court to reverse his conviction and send it back for a new trial this case involves the death of his girlfriend sandra frazier seven twenty five five slash one twenty five well it's in my brief but it's the interpretation of that statute that this appeals about subsection believe that statute says that if the finish previously been convicted of certain crimes set forth in subsection a then evidence he's been convicted of those crimes one of those crimes can be admitted in evidence against him at the trial for one of the crimes set forth in subsection a i might also mention it subsection seed goes on to say the judge should weigh the probative value against prejudicial effect and consider such things as proximity and time and the factual similarity the crimes to set forth in subsection a are domestic battery aggravated battery against a family or household member stalking aggravated stalking and violation of an order of protection there's only one thing that those five crimes have in common the only thing this five crimes have in common is that they're all from article twelve of the criminal code so what does any of these types of offenses was that language in that fortune in the statute mean if it were limited to delineate i'm i believe that for instance now there's a crime aggravated domestic battery and i believe that when they say these types of offenses well aggravated domestic battery certainly like messing battery and aggravated battery against a family member another example well let's just talk about first degree murder that right ok is that under your your example that you just gave is that like the offense of every aggravated battery of a household member except that the ultimate harm to the victim here was greater resulting in death instead of rape by the way i don't believe so your honor i know that's how the  of the crimes listed are in article twelve but then secondly it's it's one of three first remoter is the most serious crime that we have the most serious crime for which one can be placed right assess your own i'm not saying that there's not a tremendous amount of evidence against my client but it was a jury question and the jury question on that on on the third defense was why there was sudden intense passion and the stabbing to gain him while he was asleep now maybe and we don't argue that that he wasn't prove guilt beyond a reasonable doubt but beyond reasonable i believe that the intent of the legislature if we get into they have to is that they did not want to have to amend this statute in the future if they had a crime like cyberstalking and plus i think they wanted to foreclose any technical defenses if there was a like that your honour's murder is not listed in the statute the domestic battery should not have been admitted in this case under that statute it should not have been admitted as other crimes that occur as other crimes have an answer to impeach the defendant he didn't testify it should not have been admitted as before the case was actually called before the jury was that clear to the jury was the instruction clear to the jury as to how they should use this testimony versus impeachment versus such things well that it was not  limited to impeachment it was not limited to intent it was not limited to motive it was not limited to anything or substance that and so again my question is why was it would it be an error for the trial court to admit this evidence honor the defense said that that evidence should not come in the jury should not be instructed on that and when it came in however they did the defense did not ask for an instruction where not that's correct your honor but i don't believe that they abandoned the issue i think back if they had thought that it should have come in but with some other instruction then they should have tendered that destruction but here's the view was there should be no instruction and how can you tender no instruction they object and that was beating and he dies from it well then she or if it's the other way around he is can be charged with domestic battery and with murder you can be charged with both if you go to trial i think that the state can ask for that evidence of a prior domestic battery be admitted because he's charged with domestic battery here and then it's given a limited struct jurors you can only consider it for the purpose of this domestic battery charge you cannot consider it for the purposes of the murder charge now that's slicing it pretty fine but that's how i read the statute may please the court i'm assistant attorney general eric levin on behalf of the people the judgments below should be affirm for three independent reasons two of which have already been addressed this morning one of which that hasn't i'd like to briefly outline each of those and then i'll discuss each one in turn the first reason to affirm the lower court's judgment is that a prior domestic battery conviction is admissible in a subsequent murder prosecution where the murder arises out of an incident of domestic violence under section one fifteen dash twenty the second reason is that even if such a prior domestic battery conviction is not admissible under section one fifteen dash twenty it is admissible and would be admissible at a retrial here under the newly inactive statute section one fifteen dash seven point four and finally even if defenders prior domestic battery conviction was not admissible under either statute here for propensity purposes that error was harmless unless the court has another preference i'd like to begin by addressing the argument that hasn't yet been addressed this morning namely section one fifteen dash seven point four but i think that might be the easiest way for the court to dispose of this case as i read the defendant's briefs i don't read him as contesting the fact that under the terms of section one fifteen dash seven point four his prior domestic battery conviction is admissible at this murder trial the only argument i read him to be making is that section one fifteen seven point four cannot be applied to his case retroactively the retroactivity analysis however has two parts the first question is whether or not the general assembly intended for the statute to have retroactive in fact and then the second question is whether if they did so intend rather constitutionally the statute can be applied retroactively under the intent the this court's cases are clear that where as here there's no express indication in the retroactive the fact where there is no such indication this court looks to section four of the statute on statutes and section four of the statute on statutes creates a substantive versus procedural dichotomy it says that where a statute affects substantive changes in substantive law such as altering rights or obligations of parties and so forth then the statutes only apply prospect of lee on the other hand where the statute of facts changes in procedural law which it as this court recognized in people vs atkins include things such as the law pleading at practice and of evidence where meets the where it affects those procedural laws it can be applied and it's presumed that the general assembly's intent is that it be applied retroactively here section one fifteen dash that that's some point force clearly a lot of evidence which falls under people versus atkins definition of procedural laws and so in the absence of an express indication from the legislature as to the statutes temporal reach it's assumed that the legislature intended for the statute to apply retroactively the next question then is whether or not that's constitutional and for that both this court and the united states supreme court have recognized for types of laws which cannot be applied retroactively or which by or which a retroactive application of that would violate the ex post facto clause those four types of laws are common and referred to as the culture versus ball factors the first three are clearly not implicated here though be those being types of laws that make something a crime which previously wasn't  types of laws which increase the punishment for a crime greater than it previously was or types of laws which aggravated crime to something greater than it previously was the fourth factor it is similar to the first three but it deals with rules that altered the quantum of evidence necessary to convict so for example in carmel versus texas there was a law which pretty before the law was passed certain sexual assault cases require the testimony of a victim plus some corroborating evidence in the absence of corroborating evidence the victim's testimony alone was insufficient the supreme court referred to that as the sufficiency of the evidence rule and the court held that a subsequent change in that law which allowed for conviction or which allowed for conviction on only the testimony of the victim was the type of law that altered the quantum of evidence required to convict and which could not be applied retroactively of course the classic case is  which where the parliament retroactively changed the law and allowed a conviction for treason which had previously only been permissible on the testimony of two witnesses and here it said we're going to allow the conviction for treason on the test more the only one witness so those are the types of laws which lessen the amount about to dance or allow for a different type about the dance to convict where previously such evidence would have been insufficient this this is the what we category or class of evidence that is admissible and the court has never held either the supreme u s supreme court or this court has never held it back type of rule about the dance concerned only with what types of evidence is admissible the cour point four now the defendant argues that he should nevertheless get back a new trial because he was not afforded the notice or the weighing required by one fifteen dash seven point four but the fact is one fifteen t wenty has those exact same provisions under one fifteen twenty the people gave defended pretrial notice of its intent to use prior domestic battery conviction and the court then gauge in the very same weighing that would be required under one fifteen dash seven point four and found that the conviction the prognostic battery conviction here that the probative value of that conviction was not substantially outweighed by the danger of unfair prejudice now the defendant challenge that finding in the  he's not renewed that challenge here and so would this case to go back to the trial court it would essentially be there's really no purpose for that because we already know that under one thousand seven point four these convictions would come in in any event however as i mentioned there are two other reasons to affirm the judgments below and the first is that these convictions are this prognostic battery conviction was admissible under section one fifteen dash twenty the the defendant's contra interpretation of the statute suffers from two fundamental flaws the first is that it ignores the these types of language these types of offenses language in the statute the defendant doesn't explain how his interpretation of the statute is any different without that language essentially his interpretation the statute is the same as it would be if the statute simply said listed five offenses and then said these offenses rather than these types of matzos and in fact earlier this it's counsel seem to concede that the statute is not limited solely to those offenses that are listed he seemed to recognize that there could be certain instances where that the general assembly intended to allow leeway for the courts to determine whether or not a new crime or crime not listed was of the same type as those listed to fall within the statu no your honor i don't think it does and the reason is that subsection a is the part of the statute that lays out what types of offenses fall under the statute and at what types of prosecutions the statute applies and it's that section that uses the broad language referring to these types of offenses subsection b that refers to subsection a but the and the import of that section is that that section lays out the effect or the purpose for which such evidence admitted what what effect it has a trial so that's the section that says that these prior convictions are admissible for propensity purposes and so i think the subsection being the statute that lays out the reach the section that lays out the reach of the statute and it being the section which includes the broad language it makes sense when interpreted subsection b to read it in right of subsection as it were the court to read it more restrictively the broader language in subsection and it would essentially be so that have no meaning and the court has routinely recognized that one of the one of the key rules of statutory interpretation is to make sure that every every word and phrase in the statute is given independent meaning where possible and it's the state's interpretation statute gives that independent meaning to these types of the fences language which the defendant interpretation doesn't in any event even to the extent that the statute remains somewhat ambiguous i think the purpose of the statute makes clear that a prior domestic battery conviction is admissible as propensity evidence at a future prosecution of the defendant for a domestic violence related murder to the same extent that it would be admissible where the defendant on trial for a in an aggravated battery of that victim which just simply didn't rise to the level of murder the mere four surety of whether or not the victim dies should have no impact on whether or not the statute applies and certainly and especially in light of the broad language that the general assembly used in the statute there's no reason to think that they wouldn't have intended for it to apply equally to a murder arising out of domestic violence as it were to an aggravated battery arising out of domestic violence and finally even if the court were to find that the defendant's prior domestic battery conviction was not admissible as propensity evidence under either of the two statutes i've mentioned that era was harmless as we explained in the brief the evidence of defendant's guilt here was overwhelming in fact he conceded that he killed cassandra frazier his only argument in closing closing was simply that the jury should find him guilty of second degree murder because as he argued the victim was the initial aggressor and he had acted out of a sudden intense passion resulting from her serious provocation but the overwhelming evidence of the eighteen stab wounds he inflicted on her well after the time were reasonable passions could have cooled the fact that he then pushed her down to the ground as she struggled for help as she struggled to get help right right for through her purse looking for money and then fled on foot sensually leaving her to die alone that evidence strongly rebutted his contention that he had acted solely based on her provocation what's more even if it was air to admit his prior domestic battery conviction for propensity purposes there's little doubt that that testimony that that conviction would have been admissible as his prior act of arson was admissible for the limited purpose of proving his intent and everybody in his argument that he had acted solely on the basis of passions and so had had that testimony been introduced for its limited purpose with a limiting instruction that testimony in addition to the other evidence i just mentioned there's not a reasonable probability that the results of the trial would have been different i think bringing up the fact that the jury was informed about an earlier arson and talking about seven point four those have something in common he was not convicted of arson that was told to the jury as bad  acts and and they learned all about the details he piled her clothes on the bed he set fire to the bed he was mad at her for this reason that the jury learned all about the facts of the arson because it was a bad act here the page i cited earlier in the record are one thirty four the state's attorney says adding to the domestic battery i think she got a black  the prosecutor didn't even know what the facts of the earlier case was the jury certainly was not told the facts of the earlier case for this court to say that we're going to declare that the evidence in this case is sufficient to impose a rule under seven point four to do that you have to look at the factual similarity between the domestic battery and the crime in this case at this point in time we don't know anything about the domestic battery except when he was charged and when he was convicted and that the prosecutor thinks to she may have received a black eye i don't think under under the facts of this case the court can impose a ruling under rule seven point four and to remain in that with directions circuit court to do that with no knowledge about the domestic battery i think that's an advisory opinion are there any questions or honors thank you thank you mr burke mr levin for your arguments today a case number one eleven eight nine six people this is chapman has taken under advisement agenda number four mr marshall the only supreme court stands adjourned until wednesday january eighteenth two thousand and twelve it nine a