that's what it is it's an estimate of weight that's number one number two the weight that you're assuming was accurate it was not the product of somebody getting high on the scale it was  well for your first point mr daniels wearing a sweat shirt when he came in and the transaction and the robber was on the t shirt so the robber is with a t shirt you can see that he's more muscular this question would only make mr daniel look bigger than he was  so given that if you take the such an account it's actually the smaller person mr daniel that's that's where in the sweatshirt regarding the weight of course there may be a discrepancy between a reported way and actual weight but if you look at the photo  police called mr daniel i mean know that they told him the link that was left at your store on the robbery was used in a transaction in your store on may twelfth and they tasked tam with getting the video and cutting out the part with that show that for that transaction about fifteen minutes before and after and sort of making a copy of only that part so they ensured that he would have watched the video and he did watch it he watched a video with the goods just in his mind that this car that was watching the robbery was used in a store and so he watched it thinking oh that's  let me just say first of all i'm glad to see that you're not the person who wrote the opening brief because i'm page fifteen of the opening brief the following clause always the whole sen this case police encourage shafi to view a video of daniel using this link card in the store weeks prior to the armed robbery telling shafi if this was the same person that robbed him i thought that this was the same person that robbed him unless this office has taken a new definition of the word hell to include imply that is a misrepresentation of the record and i have always championed both the state's attorney's office and the state appellate defender's office for the veracity of their assertions of record in their briefs i think it's in predecessors i'm sure inadvertent misrepresentation of the facts it is in light and it is an inference but we know from the record that they told him that it was the link i was left in that card was used in the transaction and as i said we also know that they did task him with bringing them the part of the video they said they wanted roughly fifteen minutes before after so so this interest he did watch it and we know he watched it after this conversation with the police so now we get to the issue of even if there is some suggestion and even if the suggestion is an improper suggestion you have a circumstance and it's repeated throughout the briefs about how the somehow his link card being at the scene of the robbery is is in no way damaging to the identification of the individual so if i can parse out the way the argument appears to be it's that he was in the store earlier he had his link card in the store earlier his link card was in the store on the day of the robbery and presented by the robber and since this person still it was identified in a photo already and later in a  it just so happened that the link card was stolen by somebody who more resemble him then any of the other people including either in the lineup or in the photo ray and we go on and we go on and we go why it's no is this business matter and all in the context of the facts of this case yes your honor it doesn't there's no guarantee that you know picking a few people are going to have somebody who everybody looks exactly like like the person so yeah he somewhat resembles him but the link card doesn't get passed without the identification the link card doesn't prove that mr daniel was the robber it's it's ambiguous at best the reason is that the link card the mother present said and he doesn't you know try to use it or anything he just it's gone or it was left in the storage room that he robbed if he was the person and realizing that was a big mistake it would lead to identification it's stolen and there's nothing in the record that would suggest that a wallet was stolen a burglary occurred a robbery occurred a driver's license was but the significance of the two weeks after the robbery at this point the police are looking for mr no there's nobody inquiring around about him there's no he's not on notice that anybody has has identified him or that he's a suspect in this crime so it's so it's not significant that necessarily waited a week or and or two before he you know reporting it maybe he didn't realize it was gone into a bank and if you look at the dates you know this is a month after it was issued this is when the money comes back on so it is also significant on the robber presents that he wants to know how much is on the owner would know would have a better idea of how much is on it and somebody just like i found this link here and then i'll leave it here and then throw suspicion on somebody else so the linker doesn't take us there aren't any reasonable interpretations on both sides of the coin it was reported stolen and  and it was not nearly enough without the identification to support a conviction for mr king you know we ask you one other question on the identification because it seems like this is a building blocks argument from the initial brief particularly that there were a number of things that were suggestive when this was first presented to the victim in an effort to identify who this was and then it was compounded when you get into court and there's and in court identification and the inference seems to be from your brief the initial briefing was filed here there he was the victim was unable to identify the defendant from the witness stand when he was there he trouble ok and what was the trouble was it was hard for me that sort of figure out from reading the transcript yet heat on he was unable to he couldn't you know you see anybody that you recognize and he couldn't at first and then he the court asked him to walk around the courtroom and see in any event he identified the defendant after he took it out you know he walked around and looked out of the cool state has sort of led him and said there and the line up but i don't see that the brief seems to argue both sides of the issue you're saying that the the repeated identification build a momentum that's damaging and unfair to the defendant correct yet on page twenty of the opening brief it says the police did not conduct any other identification procedures after the suggestive line of which could have provided an independent source of identification which appears to be urging yet another identification procedure at that point which is completely contrary to the argument that you make us where are your office makes elsewhere in in its brief the standard that there needs to be an independent basis for independent recollection there is nothing else that provides that in the record so i think the gist of that statement is that the police are certainly not required to bring in most i would be almost impossible sure but it's adjusted nonetheless and you know normal case you know when that's the only thing that suggestive it's not a problem but when you have that happen after after something here where he has got his own surveillance video he's sitting there watching a video of the person he we can't trust the video the police action and getting mr shafi to watch that video by cutting off the pipe that they needed and telling him you know we want this video because the link card was used in your store at the one that was left  robbery that action caused mr shafi two to replace whatever picture of robin he's had with daniel and to taint any further identification the judge should have done here you know should have took when they heard about shafi is identifications at the fact that he washed up video right before he made his first identification of danielle and didn't discredit that this was an international decision by the jury even taking all reasonable inferences in the light most favorable to the state there just wasn't enough here the identifications were that bad this isn't a very common thing that happens in cases but this in this case that there are just too many problems and starting foremost with that video but there's really no no the evidence here you know shows that chappie never got a good look at the robber he was processing the only part in looking down he was suddenly surprised by a weapon and only ever able to make an identification because the police it just because of that we argued we have we have an object uses a bludgeon so it would have been a dangerous weapon whether or not it was a firearm or another heavy gun like object but and the evidence here was closely balance in addition those cases are both wrongly decided both ignore longstanding illinois supreme court precedent that says that conflicting instructions especially when involves an element of the fence can be second plane or where in and want rely on nader which is the united states supreme court case which says that this issue is a federal structural air but the fact that our supreme court has used the term structural error sometimes in lieu of second prong plainer doesn't mean that they meant to equate it with federal structural error the  t supreme court has would have thought it would not have overturned multiple cases holding that these jury instructions can be second prong plain air without expressly saying so and in  addition i know there are some citations in the reply brief detailing cases where they found second prong plainer in circumstances that are not equivalent to federal structural error since they've used that term but for example i know in people v rice for example the supreme court found are there are a lot of objects out there p b guns things that look just like guns there was a picture in a second circuit case recently i would be aware of that and that was that it doesn't matter if it was a firearm or not he got hit over the head that's enough for a dangerous weapon so i would have been i would have found him guilty i'm sorry but if i'm not guilty if it was i'm sorry you know the reality is if it's hard to say evidence about how the object was used and they didn't and didn't recover the gun they don't have any more than a brief picture to show that it was a real firearm so you know i think your colleagues from the state would suggest they have the only evidence that  case even if the parties in the arguments are disputing whether you know there is a gun or firearm that doesn't change the state's burden to prove the jury beyond a reasonable doubt it doesn't change the burden to make sure the instructions are accurate and reflect the offense charged and it doesn't make the excludes all other b b guns are things you have to really be able to fire a bullet at high speed in order to be a firearm so so just because the parties might have thrown it about an argument and strategically chose not to argue on that point  doesn't doesn't necessarily mean that that we can ignore the conflicting instructions it doesn't give us confidence in the jury's verdict the jury believe they could find him guilty of amari with a dangerous weapon which is a different offense and we don't know th thousand version of the law and and hit his his side he was charged with a firearm when the legislature separated those two crimes and specifically made them mutually exclusive vaguely make them yes  is not a lesser included offense it's it's a completely separate offense has separate sentencing schemes the the argument that because it's it used to be a firearm that it somehow either or right but he was in charge of both so they could find him guilty of either or but that's essentially finding him guilty of offense he wasn't charged with had he been charged with both the and are you it would be just sentence him under the the lower sentencing scheme when if that if the instructions hadn't distinguished he wasn't charged both he wasn't charged with a dangerous weapon and so using dangerous weapon and telling the jury they could find him guilty of a lower offense when he that he wasn't charged with was  means we can't tell you know for sure that the jury would have found that fact and he did get a sentence beyond thirty years a very high sentence which we've also argued is excessive in this case so if this court doesn't agree that he new trial is please the court assistant state's attorney susanna who cry on behalf of the people you know honors the victim in this case recognized the defendant from the moment he walked into his store on the day of the armed robbery two eyewitnesses presented  i've seen him before he did not know his name but he recognized him as a prior customer who had been in the store on multiple occasions and he told the officer that he said he's been here before and one time he left in a taxicab yes he did not know who he was but your honor the police did not have him look at this earlier video there's no evidence in the record whatsoever that the police did anything to encourage to find it and the victim to watch this video and furthermore yes your hon no no your honor the record is silent as anything the police ever did to suggest that he should watch it in nearly asked for it in the course of their investigation but more importantly this issue was waived before this court this issue was not preserved for appeal and therefore this could mean not even consider it the defense it has a responsibility on a motion to suppress it has the burden to prove that an identification should be suppressed and that burden includes the moment this evidence was presented to the trial court it was the defendant's responsibility to alert the trial court to that evidence and renew the motion to suppress defendant did not do that and thus this court need not even consider the merits of defendant's contention on appeal this is exactly what the illinois supreme court held in people versus brooks and in that case brooks house that where a defendant challenges a motion to suppress and the trial court denies it a trial of reviewing courts m a trial course finding on a motion to suppress based on the evidence a deuced at trial a review in court may not however reverse a trial court's finding on a motion to suppress based on that same evidence and that's exactly what the defendant is asking that this court do defendant is asking this court to litigate a pretrial motion for the first time on appeal and that's entirely improper the people ask that this court not consider the identification of the victims act of watching the surveillance video prior to the identification on the merits rather we ask that this court find that that claim is waived furthermore even if this were to consider that yes your honor it is forfeited or at least identification was inherently reliable when the define it came into the store on the day of the armed robbery there was nothing covering his face the victims of and the defendant were standing merely feet away from each other furthermore the victim had a reason to have a heightened sense of awareness as the defendant was rifling through the cash register the victim had every incentive to be looking at this individual and committing his features to memory in addition the victim gave an accurate prior description of the defendant the victim told the police this was a male black between twenty and twenty five years old at the time of the crime the define it was in fact twenty four years old in addition the victim said he was between five seven and five ten the defendant was in fact five eight therefore he gave an accurate prior description in addition illinois courts look to whether the victim and the defendant had any prior acquaintance here the record is clear the victim consistently told the police and told this jury that he had seen this define it on multiple prior occasions illinois courts also look to whether there was any police misconduct and here there was none the record indicates detective to charlie in the course of his investigation discovered that the link card had been previously used in the victim store he background and got the date on which it was used then he called the victim and asked for surveillance video from that date there's nothing to suggest that there was anything suggestive on behalf of law enforcement in this case and furthermore the record express that the act of watching the video surveillance had any effect whatsoever on the victim's identification the victim was specifically asked in pieces on eighty one and eighty two of the record did you identify this defining because you saw him in the video or because he was the person that robbed you and the victim said i know i knew him i knew when i saw him and thus clearly the record rebuts the contention that defense counsel now raised that this was and impermissibly suggestive identification procedure furthermore with regard to the jury instructions this is an issue of plain air and the air in the jury instructions does not amount to plane air in this case the evidence here was not closely balanced it was not closely balanced with regard to whether the two who was the perpetrator in this crime and it was also not closely balance as to whether the defendant in this case was armed with a  firearm when the jury saw these instructions and they saw they were a dangerous weapon in the instruction there is nothing that the jury could have reasonably concluded that that term meant other than a firearm and that's because the evidence presented to them at trial supported that this weapon was a firearm there were two eyewitnesses shockey and con but from testified that they were the python used in this case was a firearm and as justice smith noted in people versus rushing to and that's all that's required the testimony of two of witnesses who affirmatively state that the rod with a firearm is sufficient to find that the weapon was in fact it firearm in addition even though the right been was not recovered they saw it they saw the weapon on the surveillance video the jury saw the weapon for themselves and they saw defendant coming into the store approaching the cash register and pulling out that gun the jury was able to make a determination visually upon the evidence that they saw writes that weapon was and there was no reason to believe that and it was anything other other than a firearm as as your honour's noted defense counsel here never challenge it as a guide there was the theory  trial was that this was the wrong person but there was never any dispute about the weapon that was used but both parties are mentioned in opening statement that there was a gun the jury knew the trial court told them the defendant was charged with armed robbery with a firearm and then it's just an lavin noted they heard live testimony over thirty nine times they'd heard either the word firearm pistol whip or gun and that's when they received those instructions the only conclusion that the jury could have reached was that this weapon was in fact a firearm furthermore this quote as recently as march fourteenth two thousand and fourteen held in people versus where as your honor noted that the any error in an instruction which or omits mr scribes an element is not a structural air thus the fact that the instruction said dangerous weapon instead of firearm as allies in the indictment did not lead to an unjust conviction in this case because the evidence was so strong that this was in fact a firearm there's only one conclusion that the jury could have reached based on that evidence and that's that this defendant was armed with a firearm this arguments and really applies to defendants allegations raised in the trial court a forfeit a penny a violation requires that the defendant show that the violation resulted in prejudice there's no prizes here had the jury received an instruction that the defendant was personally armed with a firearm they would have said yes yes he was that's the only conclusion that the evidence supports and in light of that there is no relief that this court can afford to find it on appeal not without evidence clearly showed that defendant was armed with a firearm instructed they would have found that he was on with the firearm and thus it cannot be said that defendant's trial was criminal it was unjust and fundamentally unfair when the results would have been exactly the same had they received the proper instruction so oh yes you are yes you are these two constitute separate acts the indictment alleged that the defendant committed on robbery with a with a dangerous weapon to which a firearm excuse me not dangerous weapon that he committed i'm dry break by through the use of force or by threatening the imminent use of force and that he carried on or about his person always on with a firearm the indictment for aggravated unlawful restraint supported it that there were separate and distinct acts which the defendant committed to effectuate each offense the evidence reveals the vista fine man when he came into the store he approached the cash register and he pulled out a gun at that and he demanded money at that point he committed each of the aliments necessary to effectuate an armed robbery but he didn't stop there after she did after he committed on robbery he first the defendant the victim onto the floor pointed the gun at him beat him with the gun first him to crawl into the back of the store put a gun in his mouth and threatened to shoot him one reason the other was still doing his job robbery he was speaking of the proceeds from the armed robbery while he was doing that yes your honor well but in crossbow it's the exact same it's the exact same charges but just similar similar facts in that case the defendant came into a tavern and he had a firearm and he ordered everyone on the ground one woman refused to get on the ground so he grabbed her by the hair threw on the ground walked over to the cash register and how the victim by knifepoint took money from the cash register the court inquest all reasoned that it was not necessary to throw the woman to the happen at the same time it's a violation of one act one crime but that's not the case here he did teach threatened him by use of force that's what initially detained him and if that's all that happened your honor the people would concede that you're correct there's a violation but that's not all that happened after detaining him by the threat of force he then further on wrongfully restrained him by forcing him in the back putting the gun in his mouth and threatening to shoot and those are separate aggravating so interesting facts if he took him  furthermore the people also argue that in this case defendant was proven guilty beyond a reasonable doubt for the following three reasons he was identified by two eyewitnesses who were on impeached at trial there was physical evidence literally linking him to the scene of the crime and there was video surveillance we must excuse my excuse my time your honor and also i accept all forms thank you for complimenting that time is  the video surveillance which demonstrated that this individual was the person who committed this crime and therefore it the people requests that this quote a family decision of the trial court and hold up the old defendant convictions for i'm robbery and aggravated unlawful restraint thank you reconsider this issue is not working in addition to chevy's testimony at trial that he was not influenced by the video is is is just different he he remembered him outside of lying people have ways any you know we haven't argued except in the police but everyone understands the vagaries of if i witness identification and part of that obviously is that you can convince yourself jury instruction conflicts and on second prong plainer in this case the closeness of the evidence and the extent to which these are two different chart crimes one of which was on charge certainly i meets that standard