clarke was guilty under a common debt design theory of accountability and the defense theory was that mr clarke was not guilty because he was merely present at the scene and he did nashiri with his co defendants the criminal intent or common purpose to commit the that i mean if that is a theory then they should have that instruction but that's what the instruction is for the instruction is for when did defended miss participation in the offense but then says but then  instruction basically assume that the state has proven accountability it does assume that the state has proven accountability but then it's for the defense to request the instruction to  establish accountability and then we can and then they have this third one saying a person is now legally responsible if they take these stats but then the c uses it to say he he is legally responsible i also participated in the beating i also participated in this criminal sexual assault and in fact the jury found mr carter not guilty of the aggravated kidnapping based on a criminal sexual assault the cases don't really get into why is where the line is but again from the cases that i say i guess you know maybe five days five days is too lot of beds anywhere past five days on pages twenty twenty am i really and in particular the twenty one i mentioned that in my year which is illinois supreme court case they are a lot of the mission of later testimony and when i was going back to prepare for the argument i looked at the exact this part because we're dealing with a finite period of time which is only two months and there is active engagement in the concealment through it be cool as johnson is hiding from  defendant is in jail and he's talking to milly walton and willie is going to be getting he gets released january the i think fifteenth or something like that and he's offered to help the defendant solve his problem and he's given a telephone number and when he gets out he will go and call is it maybe the defendant's brother or something and then get information regarding how they can solve the problem and johnson testifying against them so that some of the this is had credibility problems and all of a nation is brought forced rigorous cross examination by defense counsel the jury was fully aware of the credibility problems when they assess as to whether or not the statement should or should not be admissible  trial the first period of time is the initial i believe that is counsel the time has only been attributed to the defendant and here his request is he's had a particular defense attorney that was representing him in other proceedings and he wants that same  phone call i think at this point you know they thought that they were working on it because they got confirmation that it was they hear it this way and it's not a matter of great urgency at this point it's about six months and they said the and you also have to factor in that that this state can go to trial without the d n a they are trying to get the d n a because they're trying to uncover in potential brain issues where the dividing comes back then getting the lamp to do the subsequent work but i think we also have to look at the fact that the trial judge made a finding not once but i think at least twice that the state didn't exercise due diligence and i think prosecutors talk about the efforts they had made and i think particularly starting september sixth which is a month before the trial date this the state is looking into the evidence and they become aware working on their case and you know sort of wall it into expectation that something is going to happen with them rather than or maybe generate a phone call it could have it certainly would have been preferable because the name perhaps wouldn't be here but they're alone before trial and that's when they find out that there is going to be a problem and that's when they start to really follow up on it so i think under these circumstances you know given the fact that there may be evidence  this is in fact mr johnson and this is this is not going to be you know the be all and end all of the case they did in under these circumstances exercise due diligence where the whole thing was that attempts to obtain proceeds and that's what this was months later is part of the original fast i mean it's unique in that how regarded it doesn't apply him for permission to consume and the d n a and then they hear nothing from the state until september and only to me there's just no explanation for this ga implicit in that asking for more time is to show that they had all along to diligently and made out for us to obtain the evidence if they didn't do that then you have the trial court of using this discretion granting the continuance the fact that the mere fact that they