jones with resisting an officer ryan gross the state submitted and issues instruction to the jury requiring the jury to find that leon resisted officer i am gross but there was no evidence presented at trial that we are knowingly resistant or obstructed the performance by ryan gross of an authorized with his official capacity there was testimony admitted the trial that we on may have resisted bar once that he refused to leave against the furniture piece of a bar when he refused to leave the physical location of the are they may have been trying to assist officer gross in getting the defendant under control i'm i'm not sure i would if they were with that you know now it wouldn't have been because the state in charge of that way part of the purpose of charging a criminal offense is to give the defendant some notice of what it is that he's been charged with what he's going to have to defend at trial they didn't charge the defendant with resisting an officer zimmerman and was arguably they could have done that if there was gross i say it's time to leave the bar and i grab your arm maybe at that point preparing hand or attempting to move you and you pull away from me i'm authorized to to to restrain you even if you're not yet i'm authorized to have control of you at the time that i'm prepared to make you leave the bar trying to place handcuffs on him and there's resistance so that sure the i guess where i would say that doesn't amount to resisting arrest it's you don't have anything on the part of gross that says that that somehow inhibited authorize that you don't have him saying you know i had my hand cuffs ready and you pulled away from me and as a result of that i was unable to handcuff him i wasn't able to take him into custody something along those lines but the other issue we have here is we gray in moving it's recorded at night in a very busy bar but one thing that i don't know that anyone can dispute is that from the point that the officers had their initial contact with leon in the bar to the point that he is han removed from view of that camera approximately a minute transpires as i explained in the briefs there are cases that discuss whether or not a defendants if a defendant initially resists resists and back but then allows himself to be taken into custody or allows that act to be performed by the police officer that is insufficient to establish resisting arrest one of the cases i cited was the people versus flanagan case where an officer pulled a defendant over i believe under suspicion of dui and told the defendant to get out of the car the defender refused to get out of the car he officer attempted to grab the keys to shut the car off the defendant took the keys of one give the keys to the officer the officer went back to his car radio did and came back to the car the defendant still didn't get out of the car additionally the defendant got out the car was arrested and he was charged with resisting arrest and one of the things of court found was that yes he may have in some ways inhibited the officers performance of an act but it was momentary and it wasn't anything that prevented the officer from exercising his authority in that case here you have word again possibly  little over it maybe a little under a minute and in that time the officers approaching we are securing against the bar have down his pockets put him in handcuffs and we mount a view of the camera this is an a in the sense of resisting arrest a situation where you have a wrestling match or an extended fight where he's not putting his arms behind his back at some point very quickly based on this video he does that and he's allowed to be he wasn't up at the school or from the bar so i say that merely to say that if this court were to find that there was an act where he obstructed the performance of officer gross you have a secondary consideration and that is whether that act actually inhibited officer  bertram doing something and i would argue that where again and maybe the state will contest this but i think it's fairly undisputed that about a minute passes that really isn't resisting arrest here he gives himself up to the police officer very quickly  there's i said one of the important pieces of evidence in this case is the videotape and at least based on my review of that but your tape it is somewhat difficult to discern what's going on in that tape again it's recorded that night it's in black and white putting his hands behind his back or the officers i'm saying that i don't see any active resistance taking place in the video do you see the officers converging on him and appearing to take hold of his body and places he answered and place them against the car i do i do see that i don't see we on though fighting with the officer i don't see him struggling with the officers it is more to me a situation where you have someone in a very busy bar with dozens and dozens of people standing nearby who has told the bar security member that he is not even the bar have some officers that want to make sure that that situation is contained and that he is removed as quickly as possible and i do see them converge on him i see them pushing to the bar the defendant suffers a cut to his chin  but i don't see any active resistance on the part of we on when the officer really at any point it was imperative that the jury be given a fair opportunity to view this video and deliberate in the way that their deliberations were private if there is any kind of fundamental tenet of criminal jurisprudence it's that a jury should be allowed to deliberate in private it's been that way for decades and they weren't fully allowed to do problem is the manner with which that he'll show the judge instead of taking the video equipment and moving it to the deliberation room which we know was something that could have been done because at one point the equipment was up in the attorney's office and state's attorney volunteered to bring the equipment to the courtroom so could be played for the jury but you could be late for the jury so we know that it was mobile there wasn't any reason that that equipment also can be taken to the deliberation  instead of allowing the jury to view that video as many times as they wanted in the privacy of the deliberation room where they could rewind it and they could deliberate over it and they could discuss what was taking place on that video the judge had the jury come back into the courtroom with the judge states attorney fence counsel the fact court personnel present and played that video for the jury there there is nothing in this record indicate that the jury was told that they can watch they could watch the video in the deliberation room they were allowed to there was nothing in this record to show that they were told that they could see the video as often as they want what is in the record is the court statement of the parties that the jury would be brought in and that no one would say a word to the jury well in my experience because it's receding over the public i guess where i would draw a distinction is up to the point that the jury retires to deliberate that is a proceeding that that in my view is open to the public but once of the jury is given that instruction of you can now get prior to deliberations the jury has told you not to discuss the matter with each other you're not supposed to consider the evidence until you can deliberate and then once they're sent back to begin deliberations then the in open court well two things one it takes away from the solemn nature of the jury deliberations where it the jury is chill because if i am a juror and i think the record kind of demonstrates in this case this happened this specific video is grainy hard to discern very difficult to tell what's taking place on that video if i am a jerk i want to have the same benefit that i had when i was in my office  be able to rewind it play the game call other people and other members of the jury if i was a jerk to ask them ok what do you see happening so that we can discuss it and come to a decision about what is on the video is there any indication in the record that picture ever asked to see the video the third time or ever made any complain about we didn't see it and now we want to look at something else is there any indication that there is not there however also is no indication or portion of trial it's not the portion of trial with the jury is deliberating to determine whether or not the state met their burden of proof in the case but we also have this jury secrecy ad that says that if a jury is deliberating no other person can be present and the state makes an argument that the the that the deliberations were suspended at some point when the jury came back in the courtroom i see no evidence of that  not but i would argue that could very well be because the parties were present as well and they can feel free discussing the defendant's fate sitting there mere feet from a list kind of reminds me of it introduced to have it so there is a dispute about how the weapon was used or how the zip it came into play and the jury says send it back to this almost would it be permissible i i've never heard of this happening to recall a witness after deliberations that started probably not that may not be a good example but it seems to me that this is a piece of bad that the court may have discretion over whether to let it be viewed in the jury room versus core so i'm questioning how it can be fair to view it with council away from the size of the state's attorney so we were pointed out that this is the sort of case where there could be structural there additionally it was such a structural error because according to see the video again and so we have to look at is this a type of error that's very hard to measure and it is it's the type of error that you know we can argue feel radically about but it's hard to really point to and say this is an example in this specific case in this record where it was fair what about the fact that defense counsel acquiesced agreed to this procedure so defense counsel said we have no problem and we have no preference as to how that display i the cases that the states or the case of the the principal case of the state sites as to the acquiescence argument is one where defense counsel submitted a jury instruction the defense was convicted then on appeal the the defendant argued that it was plain there for that instruction to have been given and the court said no you complete you acquiesced in that because you submitted the jury instruction here counsel isn't objecting to it but he's also not saying i completely agree that that's a proper way that it's to be demonstrated the relook at the fact that the whole point is to allow the court to correct or address an issue before we have to work and for the first time on appeal would you agree that with defense counsel saying we don't have any preference that's fine if you want to do it that way that completely deprives the trial court of any notice any opportunity to address the issue i agree with that but i think that that's where the waiver principles  and if it is waiver the player doctrine can be examined rather than just saying that there's nothing that can be done with it at that stage we also have the ineffective assistance of counsel type of argument that counsel didn't you know in a tree that's presume to know the law didn't know to the court when this was being discussed that showing the video in this manner would violate a criminal statute would allow thing you have the defendant and two independent witnesses saying another thing and then you've got a video that is kind of the linchpin of the whole that the big you're kind of tells the truth of x as your theoretical silent witness on what actually transpired here and the germ simply wasn't allowed to fully consider and you before my time expires like you also want to point out we are has argued that impermissible hearsay was admitted as well specifically the bouncer told the jury that he had been told by bartenders that leon was being unruly and two police officers told the jury that there had been some sort of alter occasion earlier and that's why the defendant asked to leave been because ferrie testified that that was why he asked the defendant to leave but as to the two other officers no it wasn't for the truth of the matter so i thank you because you have more time  arrest that's pretty broad because it involves the with the defendant did was he pulled his arms away from the assisting officer scott walden caleb zimmerman which had the direct result of  frustrating and hitting and resisting the ability of officer rank gross to effectuate that arrest by him by applying the handcuffs so there is no explicit requirement in the statute that the defendant some sort of direct contact with the person who he is resisting it requires a physical act of resistance but it doesn't no say have to be directly to the person who is performing grass he's pulling it is that his arms away from the control holds of the assisting officers but that is has the the result of a physically resisting the arrest which is the physical act with miss charged committing and also because these officers acting in concert he's actually resisting all of them and under the quicks case in two thousand and five he could have gotten three convictions  resisting each and every one of those three officers who were acting in concert to arrest him so therefore the fact that he was only charged with one of them is not a reason to reverse that conviction on fake claims that there was only one minute of resistance and he allowed himself to be taken into custody but the testimony was that one of the officers placed his thumb behind the ear which was the known pressure point and that was instrumental in securing the defendant's compliance with the handcuffing and so when you have three officers and one the suspects and a maneuver such as this pressure point hold has to be applied in order to overcome the defendant's resistance the fact that the officers were able to secure him into custody and hand complete their handcuffing within that minute of physical resistance does not mean that his struggle was momentary or insignificant and should be disregarded  that reversing the conviction would then give the other people the incentive to physically resistant attempt to overcome the efforts of police officers knowing that if they were unsuccessful in that first minute that they would somehow be exonerated for that momentary attempt to to avoid being taken into custody so this court should be can should be aware of the  not giving defendants suspects other people adverse incentives to try to do things like resisting police officers with the assurance that somehow they would be found not guilty if they if the does not contradict the testimony of the police officers regarding the defendant's physical acts of resistance and polling is arms so therefore this court has no reason to find the evidence i'm reasonable or insufficient to constitute proof beyond a reasonable invited error however it doesn't require it actual positive agreement such as we agree to this procedure but simply saying that we don't care what how this is done is acquiescence this is more than not established that defense counsel would be ineffective for failing to insist on the unlimited private viewing of this recording in the jury deliberation room because this video does in some way contradict the testimony of defense witnesses thereby making it potentially damaging evidence in the risk would be that that would allow the jury to decide not to believe the defense arguments of the defense's case and and rely more heavily on the video if it had more of an opportunity to see it so therefore this court cannot find on this record i should i find that the defendant has overcome the strong presumption the trial strategy in terms of how it was handled  establish that it is clear obvious under illinois law that a trial court has no power to suspend jury deliberations for the purposes of evidence review of the defendant uses these examples of well if they're providing a supplemental instruction such as a pin instruct that would require trial courts to provide evidence including other sorts of physical evidence exhibits for unrestricted your jury use during deliberations in secret and that's something that should not  with respect to do you structural error argument the defendant says that this is protecting the right of the jury well it's not clear that the jury has the right to engage privately in deliberate with any sort of exhibit that was admitted into evidence in fact courts have discretion in terms of what goes back to the jury for their review so therefore this is not protecting any jury right because the secular the jury has that right to insist on having or to receive all the evidence for private deliberation and so with respect to the hearsay arguments again this is think he got thirty days in jail so this is not a situation where he would have to have the post conviction review act hearing act as that as an opportunity court were to defer consideration for example of his claims of ineffective assistance of counsel and if he doesn't have the post conviction hearing act then really what he's left with is the fact that he's failed to overcome the strong presumption of trial strategy failing to objects to these sort of things is trial strategy and the inexperienced attorney knows when and when not to object and doesn't want to necessarily highlight the a damaging evidence in case an objection is  overruled so therefore defendant has to overcome that strong presumption trial strategy and if you still do that on the record then the only operate for this court would be to affirm based on the defendant's food to meet its high standard of stric he also cannot meet the high standard stricklin with respect to prejudice because the mention of an earlier alteration was not prejudicial because it was only cumulative you have a video showing the defendant being competitive an agitated we have al testimony of police officers observing the altercation with the bouncer derek claflin where the defend it was agitated and combative so reference to some sort of earlier alter occasion where the defendant may have had that same attitude or same behavior is not agitated in combative during these later alter cation with the bouncer and that would not the fact that he might had some other unrelated sort of like very big we specified ultra cation before the video showed what happened with class and police officers that would not prejudice the jury and into thinking that somehow he is the type of person who had resisted police officers which i think is the defense argument for why it's prices the state leaves that's not sufficiently prejudicial because exception as far as to show why he did what he did the bouncer yes he could see he could explain he could use that for a limited purpose fambly if there was an instruction asked for this hearsay testimony come in but also for not limiting the servants in a case where the defendant is accused of resisting arrest i disagree with the state when the state says the substance was merely cumulative i jerk sees that a defendant is in a possibly verbal sure verbal confrontation with somebody in the video that is very different than saying he was in a physical altercation prior to when the police get there if i hear that somebody is involved in a physical altercation it makes a little more likely to me that well if they were in an altercation ten minutes prior to this maybe either maybe they are resisting maybe they are trying to bite the police officers because they have that almost propensity to do that this wasn't limited and counsel didn't object to this testimony which again further demonstrates the ineffectiveness of counsel as a reasonable doubt argument the state's says and i'm not saying that this is word for word but that leon resisted gross's ability to effectuate the arrest my problem with that statement is there's no evidence of this this would be a much different case if the state  questioning gross gross said he pulled away from the other officers and the state said ok officer versus what were you doing at the time that i didn't have sound i was right handcuff him at that moment but when he pulled away from the other officers i couldn't do that well i think that gets us a lot closer to a situation of resisting arrest the inactive the defendant is making often officers authorized back impossible to perform but we don't have that here we don't have any testimony from gross saying that i was  by an act of the defendant from doing an authorized that from putting the handcuffs on him from arresting him he we may have had that as to the other officers but we don't have that towards officer gross the state also as to the video portion of the argument says that the video contradicts some of the defense witnesses and therefore it may have been trial strategy for defense counsel not to see that the video is proposition to the jury if it is the same reference that th state has made in its brief there's some dispute on whether or not the video shows the defendant chained it in the bar or maybe something else maybe a bottle or a glass on the bar that in of itself is not sufficient to say well i'm not going to show the video to the jury that may substantiate my witness's testimony that the defendant was resisting at the time and again when i view the video i don't see any active resistance on the part of the defendant i don't see him fighting with the officers i don't see him refusing to put his hands behind his back so that video would have actually helped rather than anger the defense finally the the state i believe said that the deliberations didn't occur in the and that's correct in this case possibly because the jury didn't want to talk about what it saw on the video in front of the parties again the jury should have had an opportunity to you this video in the privacy of the deliberation room as the of said for decades and i should add and i think it's a very important point as to whether this was error or not the third district in the can only two of the three justices found it was there for the the video to be played in the courtroom