degree murder is a new an additional charge so the error that occurred here occurred one hundred fifty days after the second degree murder charges filed when they filed first degree murder was committed with regard to their how could it be her continuance to further prepare so then there was that was in addition to the fact that they didn't even object to the speed they did not object to speedy trial which is why i read we do raise this issue under ineffective assistance of co well as front to plain error because it was not raised but defense counsel did object to the changing of charges in did expressed surprise and even confusion each time the state did change the then ultimately change charges to a more serious charge and that's what we have here so any continuances that defendant requested for second degree murder would not theory over to the first degree murder charge which is why the  necessarily and that's because there is not only the added burden of if second degree murder charge the state is conceding this mitigating factor but it's also the fact that once first degree murder is charged there's really a myriad of possibilities of what could happen in the case more so than second degree murder for example as what happened here the second degree murder instruction could be given without the consent of defense counsel so  self defense which which had been timely filed that affirmative defense with it also the same defense that i think is the question to the original second degree leading to the same defense it it was the same defense but i believe that he additional additional possibilities of how the case could proceed created a burden on mr psyche as well as just the burden that the state had conceded a mitigating factor under second degree murder which then they did not concede on their first three murder and that is this part recently seven people versus four first and second degree murder are different and says they they are not interchangeable in that even though they have the same elements second degree murder is a different offense than first degree murder to plea if the state was up charging from a lesser included offense to a greater offense there furthermore the change in penalties between first and second degree murder also negatively affected mr sock the whole purpose of the williams rule is to allow defendant the ability to the ante between first and second degree murder yes that would always be the case but mark how does that affect the ability to prepare defense effects what what the defendant the sort of the cost benefit analysis that defendants doing as far as going to trial essentially they're anticipating going to trial and assuming the risk of second degree murder which is a shortcoming of yours the first three murder and also qualifies for favored a credit whereas first degree murder is must be served at  hundred percent so in preparing for trial you're always playing the risk of the potential penalty by changing that risk making it significantly more serious outside of a speedy trial and know that that also creates a trial by ambush because defendant wasn't was unaware that he would be seeking that potential penalty and again the error here happened hundred fifty days after second degree murder w absolutely and that if the state charges second degree murder they're conceding the existence of that mitigating factor so if they upped the charge to first degree murder they're no longer making that confession and state chose to drop that charge and proceed just on first degree murder indicating that they were not seeking that second degree murder instruction it's also noteworthy that neither the state nor of the fence argued that in their closing that and i think it's important to discuss the fact that when on defense is seeking an all or nothing approach they're requesting that the jury find self defense occurred and that's a pretty straightforward question as to whether or not self defense occurred it's a more nuanced question one second degree murder is on the table because you're asking whether or not the defendant's conduct was reasonable so it's possible that mr sakis testimony would have been presented differently this all occurred in split seconds mr stockton was inside a room mr fox began shouting and banging on the door mr fact he stepped outside that room and then was sucker punched by mr fox before he acted in self statements during the journey instruction that he would have put on the case differently if he'd known he was defending against a second degree murder instruction so the fact that there's this additional burden not just from having to prove the mitigating factor but also the uncertainty that arises when first degree murder is charged as far as just second degree murder that factor w in favor of finding that first degree murder is a new and additional charge and additional penalties also weigh in favor of finding that first degree murder is a new an additional charge the appropriate remedy here is excuse me the second degree murder charge was no longer pending so there should have been no trial and the state has the power to charge me with fraud charges but they must do so with in the rule of law  and we see questions like that being asked in the cases that are cited in the brief for example people versus caldwell defense counsel was actually at allowed to ask in that case whether or not the victim removing themself from life support if she had not done that would she have still been alive that's an example of defense counsel being able to link it to see those actions and cause they should and indicate that there are an intervening cause and you mentioned you know mr fox took numerous swipes at his treating physician he also discharged consult from the hospital without the doctor's permission the doctor would have liked him should either go to a trauma center or choose stay for  most most notably in cases of gross negligence or intentional medical maltreatment that those constitute intervening cause of death and create a valid defense for homicide mr soccer should have been allowed to argue that mr fox's a conduct was so abnormal it was not reasonably foreseeable that it broke the natural chain of prosecution so just like a third party's action can create an intervening caused by being so outside the bounds not just medical maltreatment intentional that now treatment mr spock should have been allowed to argue that mr fox's conduct was so outside the bounds as to create intervening cause of death his conduct was intentional he swiped at the doctor multiple times he left without being discharged now even without the defendant offering up any of their own evidence as evidence came in through dr day's testimony that presented ample evidence to support the cause ation the fans but because of the trial court's motion in limine a ruling he was not able to ask those questions that would link what mr conduct was to whether or not it was preserved the issue in his post trial motion and again the court was very firm that he was not allowed to go into the shoes of opposition so that question was taken away from him taking away from the jury to be bond which counsel just referred to their case shows what such an offer proof might look like the issue there with an argument that the victim had made a deliberate act of suicide as an intervening  death there is that evidence show that the victim had on or previous occasions over the past few months attempted suicide so there was a critical issue in that case as to whether that was an intervening  here the defendant never made any such offer proof he never even with respect to dr de he never made an offer proof as to what cross examination might bring out in terms of whether this allegedly  behavior had any of any effect whatsoever on the outcome of treatment there's just no evidence in his record that there was any such link between his conduct and the ultimate result here  nothing here that would change our strategy and waiver we're ready to go to trial on this first group murder charge and counsel's concession aside that was a that was the correct response because the first degree murder charge had always been embedded in the original second the murder charge that original charge alleged that and i committed for the murder and defendant prepared his defense of the second degree murder charge exactly under the fact that we now hear that there was no violation of the notice for firing and i think in fit this court said that they were to look carefully at the circumstances of each case to see whether the defendant had adequate notice that fundamentally the question asked by the williams is whether there was no just repaired and that was clearly said here the procedural issue i'd like to stress because problematic rule i think this case illustrates the sort of incentive that that creates so here bennett never at any point object to the filing of the first degree murder charge the state having confronted no speedy trial objection went ahead with that charge and didn't proceed on the second degree murder charge and i feel that and raised this the trial issue now and asking for a drastic remedy of reversal of his conviction and then ultimately immunity to prosecution for his crime and it's problematic in particular that this is the only issue here is this  and the poorest recognize that the statutory right and constitutional right are related but there are now courts and the speedy trial statute is in some ways much broader than the constitutional right to part of williams's closing the loop hole of the state violating a defendant's speedy trial rights by up charging later in the remedy is drastic as the state has the power to make charges and with fraud charges here they filed a time our first degree murder charge and they chose to dismiss a second degree murder charge therefore the appropriate remedy is not to be tried