the hearing impaired ok this case because the trial court erroneous lee entered to judgment of convictions for first degree murder the state's conceded that i don't think it's an issue i would ask though that the case gets remanded for re sentencing because i mr he do has the right to that remedy end of the case so always according to the case climate not necessarily it's at the discretion of this court and we should exercise that discretion because because again mr he too has the right to that remedy and leave he has a right to it being considered but the question is how what is your theory of prejudice assuming that that is the sole remedy comes out of this  because the judge clearly knew the circumstances of the acts yes the background of both the defendant and in the victim it was brought out right nause in this case and there is nothing that is that would be said that would not have been presented to the judge in the first place  with that concession by the state there would still be assuming nothing else changes in this appeal a first degree murder conviction yes your honor but nonetheless there are two convictions right now one for intentional one for knowing and i would argue that there is a there is a prejudice and that could have impacted the route court's decision in the sentence imposed we don't know because we don't know mr hindu has a right to a fair sentencing hearing and i would ask that the court remand the matter you've got bigger fish to fry so it's begun your honor at this case is a case where the defense presented evidence where there was evidence of imperfect self defense and at most mr he was guilty of second degree murder at most in this case as the court's just pointed out he was an active latin count member that his nickname was track we know that kiki was at the cloudy is how it was in violation of a protection order and was currently subject to criminal prosecution at the date of the incident he wanted her bad terms as hard in her up in terms of the time he mentioned it was about a month before and we've all read the records so we're familiar with you know just how bad a guy he was and the way he expressed it against this entire family but in terms of the timing about a month how long before this incident did the defendant get his knife the defendant testified that he purchased the knife a month before the incident for ten dollars so there you're talking roughly the same period of  around the same period of time about a month before this guy starts really harassing this family to put it mildly and at the same time this young man who was found in this family acquires a knife yes your honor ok and  record indicates that the reason that mr he did purchase the knife was in order to practice tact himself the record indicates that he had been jumped about a month earlier he was under the impression that kiki and kiki's cohorts were responsible for jumping him that's the whole issue of whether it was first degree murder second degree murder or in so fans contingent  trier of fact this determination of the credibility in this case when you consider the testimony of graig and if that's the mony of the defendant which after all are the two key witnesses who testified in this case if you were to believe the testimony of greg as well as the court apparently did his findings on a case as opposed to miss citing evidence should be interpreted by us as indication that he didn't hear or misheard the evidence and i'm searching for any citation to authority on that indeed everything i know leads us to the opposite conclusion that  judge need not cite all of his or her reasons for reaching a decision and that one cannot presume because the judge did not cite a specific fact in the of the basis of his or her ruling that they didn't hear the evidence that they didn't recites and were this word your honor may answer your first question true but if he's a direct eyewitness to how it started there are other turkistan szell pieces of evidence such as the remarks that were reported to have been stated by the defendant after the stabbing wishing for him in the most profane way to die and statements related to the number of stab wounds and the location of the stab wounds and the statements relating to what would seem to otherwise be an irrelevant acknowledgement of his gang affiliation which would seem to be largely irrelevant to a self defense claim so there's circumstantial evidence that would support it given by other witnesses but i would agree with you that the only two witnesses who gave a step by step recitation of the events leading to the stabbing were laughs and the defense yes and as the court points out there's circumstantial witnesses that give other evidence that is used by the trial court to make inferences but there's also other circumstantial evidence going to k statements he makes and how this fight begins and going back to that point mr lacson it is the key witness the suit naturally has to prove its case beyond a reasonable doubt and it's based on great lapses testimony which is inconsistent about who throws the first punch or how this fight starts i direct examination mr latham's very clear when he says that kiki or i'm sorry mr he do approaches kiki they're standing face to face the your briefing page thirty one where you cite him correctly volume one you cite three different volumes for this witness's testimony within your brief but i think it was volume six you said greg testif kiki went to hit asher and that is when asher pulled out his knife that's what you represent the facts are right yes your honor that's not what he testified to that's a misrepresentation at best because if if you want to cherry pick from this important witnesses evidence evidence that is helpful to the fat so the defendant the best that he said is that it was simultaneous knife and arm go like that that's not what he he didn't say what you represented and in fact when pressed on further examination and in fact cross examination he said quite the opposite so you know an important issue who's the aggressor you know is this mutual combat or is the defended initiating it i think your brief misrepresents what actually was testified to a trial ok not a problem your honor then it was a choice  wording and it was not anything intentional and i would point the court to page eighteen of my reply brief yeah i saw that reference  examination he then changes his testimony and he says that mr he pulled out the knife first and then he went to punch asher so his testimony so it is certainly credibility determinations are the trial court's job we were none of us were there and that's why he saw well we'll give death deference to the trial court's findings on credibility however and this goes back to the that you had asked me about earlier regarding the due process violation and what my argument is there as far as the court's ruling i just want to specifically frame the issue because this isn't a case where we're saying that the trial court incorrectly recalled the facts this isn't a case where we're saying that the trial court ignored evidence that was crucial to the defense this isn't a case where we're saying that the trial court improperly gauged witness testimony in the credibility of it which i think was kind of the fact scenario that you asked me about this is a case where the trial court didn't consider an entire substantive about the aggressor about credibility determinations the fact that he believes that mr she was the aggressor and convict him at no other point in considering all the evidence related to provocation and or under reasonable belief in self evidence clearly an understanding that he had three choices before him including second degree murder and then went on to say why he thought it was first degree murder and you are six rapidly from the fact that he didn't discuss why he didn't think it was second degree murder that even though he brought it up say he didn't consider that yes but he did consider the said he considered it and he didn't even have to say that under the case law but he did say that these are my three choices and this is why i'm picking this choice i would disagree with the fact that he didn't say this is why this is my choice he said he said this is why this is my choice and first offense and i am sorry and first degree murder in denying self defense and you're saying that because he didn't expressly state the reason why he didn't find second degree but that is somehow to be taken by us as the fact that between the time he stated that was his option and the time he finished his determination that he somehow forgot that he had that option i don't know what was going on in his mind and unfortunately i can't tell the court but the point is there's two additional elements the court now is the two mitigators in the trial court never once applies a single fact in the application to those two elements and if he really knows two elements on the lesser mitigated off fans of second degree murder i would argue it's analogous to not giving a jury  instruction on that offense the jury needs to be instructed on the law because they are lazy people the judge as case law for one hundred years has set out is presumed to know the long and in this case we don't ask that they give him faith because the judge said these are my three options but this is not at all analogous to not giving a jury or structure it's quite different he'd misstated the law and shown that he was not conversant with the criteria as opposed to simply not addressing it that would be a different situation indeed all he would have had to have said is i find the defendant guilty of first degree murder wouldn't you agree he would have to explain himself a jury doesn't have to explain itself and you know i disagree that that would have been sufficient and we'll use that judges in your view and this is a linchpin of your argument required to explain in announcing its findings what you're saying is that he did to your satisfaction articulated clearly on the record that that's what he was doing he may have done it and and follow option that he discounted in his mind but didn't articulate to you to your satisfaction that there is enough evidence for second degree murder right which is tantamount to making a i mistake of law not just i think i think you have a problem with with us accept that we understand your position you know we do understand your position let me ask you if you could move on to the ineffective counsel argument right instances that out it would be hard to pick the top two but well just in terms of what what was it in your estimation was most prejudicial to mr hood who's right to get a fair trial from th first of all failing that are you for second degree in both opening and closing and the record indicates that his trial counsel did not have would need an understanding of week of difference between the two they put on obviously evidence in attempting to get to second degree and that's why as the court pointed out it nauseum we hear about kiki his violent history is violent his character for violence but yet they don't ever argue that this was a mutual combat situation they don't know if we were to reject the argument you just you know except the fact that the judge based on what he said  consider second degree how would that involve the second prong of struggling in other words what would be the prejudice if in feeling some argue that too would prialt court judge the job court judge nonetheless considered and rejected because if it was argued and put in front of the trial judge and i would use the fact of we and zealously as an advocate would do the trial judge might completely ruled in a different way and convicted mr hugh of second degree murder but the trial judge was deprived of never even having the opportunity to hear counsel argue that so  think i understand what you're saying and i can appreciate it from reading the record that it was not mentioned in opening or in closing in your faulting them for failing to hammer home their theme that this man should be convicted of second degree murder  they then when presenting evidence pertinent to both provocation and or imperfect self defense can't weigh a proper foundation have a struggle getting evidence in that word of encouragement to second degree totality was kind of deprived in second degree to an extent because not only did they not argue for it but they can't we foundations they can't get one  think in terms of what is overbroad we call clinch material because of course lynch material is is material that would be unknown to the defendant and really we have not only lynch material presented to the judge but we also have evidence of bad acts of violence that were known to the defendant that were presented to the judge it's all in evidence what is there that was not in the evidence that you think would have made a difference and how are we to know that it wasn't in evidence based upon the record and you know first of all there's the statement and it's it never comes into evidence it looks like from the record but honestly this record was so difficult to ascertain at some point what the lawyers were trying to do but there's a statement that he had made to anthony cloudy or the only way out of the gang is you know through body bag that never ever eventually comes in they struggle they tried their side bars but it's an instance of one piece of bad ends that further goes to you know peaky rise as a person and that would support the imperfect self defense well i think i'll give you one in the cross examination of the eyewitness greg   fence lawyer asked the question is that in effect that sure pulled out a knife and stabbed him immediately without hesitation as soon as he came up to keep that's the defense lawyers question and on that point your honor going back to what you would ask for specific examples of what was i would say not trial strategy but ineffective assistance of counsel defenses decision to recall greg ladson on its case in chief i would put that leader and again i would just point your honor to the inconsistency in greg's testimony when they recall greg lats and they ask questions like you have just identified and they're actually damaging their defense by doing that right and greg writes and then is given the opportunity to change his testimony to clean up his testimony and they're also just giving even though they're not in front of a jury the get in the trial court yeah but at the same time his testimony when he was a state's witness was actually testimony that's occurred and mutual combat there's no reason well except judge his right to due process doesn't change his right to a fair trial his constitutional rights remain the same the burden is on the state to prove their case beyond a reasonable doubt and the defense did present evidence by preponderance of second degree and i would ask this court to they kate the first degree conviction and reduce this to a second degree case in the alternative i would ask for the courtroom in this matter based on the constitutional violation for a new trial because he did not receive effective assistance of counsel thank you good morning you're honest marci take us assistant state's attorney for the people of the state of illinois very briefly on the first issue with regards to whether or not this judge considered the issue of second degree i do want to just point out one thing we had was not said which was he did consider he he did consider he didn't ignore it all he actually stated on the record in defendant's brief she says that the judge never considered any issue of a defendant injuries and here's quote what the judge said in his ruling about the defendant's injuries bravery stab the defendant's injuries and he tells me about those injuries and i have a clear understanding about those injuries mr he sues injuries and he had injuries were consistent with the testimony of mr latz and on the struggle of the struggle he had with the defendant he need him in the face and the victim was in contact with them he also did defend the defendant's brief also pointed out that he never ever touched on any of the assaulted in violent behavior that came from the defendant was aware of the victim here's what the court said on the record during his ruling defendant testified that on a previous occasion he'd been jumped by two people that he found was the victim in someone else there was bad blood between the defendant and the victim a rival really taken ism that goes beyond gang issues it's very personal when he got the court also noted that when the defendant saw the victim he thought it was my time they were going to kill me so he didn't consider what was going on in his mind he didn't consider evidence out of this second degree stuff is rather just to make that point because all the other points have seemed to have been made if unless there's any other questions on that issue i don't like to quickly just talk must be fought on equal terms and that mutual combat does not apply were defendant retaliates completely out of proportion to provocation and one who instigates a quarrel cannot rely on the victim's response as evidence of mutual world we have all three of those factors in this case which shows that especially now in the light most favorable to the state the evidence that the defendant was the aggressor that he used excessive force and that he in the fifth them did not fight on equal terms mutual combat was simply not an issue in th case moving along to i mean certainly the defendant is moving along to the issue of whether or not first degree murder was established on the record certainly in the light most favorable to the state we think it was overwhelming certainly defendant is entitled to his interpretation of the evidence by the tragic ordinary made very clear what his interpretation of the evidence was and it is simply cannot show that no effect could have found the central elements of first degree murder beyond a reasonable doubt that you know they talk on an hour about the history between the victim and the defendant and i would just point this case to people versus simon which is considered very similar issues and it's right on point with their case considered very much the same thing we consider the defendant's account it said even if the defendant account of the history with the victim is true you know all these bad previous things that have happened between those facts not the only facts and evidence while the victim's history of violence toward defendant may be relevant to determining whether defendant had an actual belief and a need to use self defense his behavior during the altercation should also be considered remorse over the killing and that the trial court determined that the defendant's testimony was not credible this case is on all fours regardless of how they want to interpret the the evidence in this case and i also do want to point out too that allows talked about that inconsistency inconsistency in greg left his testimony it is not an inconsistency it was a clarification because he was right leg lacson said on direct the question was and what did you see happen next not at all in any way inconsistent it was a clarification and i also want to point out that some of the other witnesses that were saying weren't important you know greg is the most and can be one but the other those other witnesses that corroborated very important parts of his testimony i mean when we're talking about whether or not he's the aggressor effect if you walked away and that bravery sees him walk away and nasa sees him walk away those are crap ration of of it was ok we sometimes fail ok but you know ok and then let me just touch on the next point which is you can't you can't read this record and view this statement as anything other than a crash being overly polite to  see all that and i accept it but when i when i read the cross examination of greg by the defense lawyer and here leading questions asked that sound like they're from the prosecutor i'm troubled well i will tell you i shouldn't be i will tell you my interpretation first of all i just briefly before i get to that kind of the extensive lynch evidence that was allowed the extensive evidence of his knowledge was allowed there was no issue they did they laid the foundation it all came in obviously the foundation was right those pictures with which which he later leader argued was that he was wearing gang colors he had he also argued that there was two hats with the gang in the sign in the sea and he also asked him about his injuries and added able him to argue that gregg was found more involved in the fight than just pulling the things so he had a strategy it was a strategy he had a reason he wanted to be able are you that greg as you put it that he put them up there for one reason here's a picture of you in gang colors and so he can argue the gang angle so it's a strategy regardless of not if in hindsight it was in the best reggie with all of the literally i don't know how many thirty other incidences i will tell you the one that i read twice was the one that you picked out and when i just pulled out the knife and stabbed him i mean to me this could've been stockhausen we don't know it's a cold record we don't know the tone in which he said these things i mean obviously gregg lassen was sal and he was saying the same thing over and over and so what else you have at this point you just have so that's what you're saying that's just so likely that he's going to pull out this giant knife you know so i think but look i mean there's no prejudice the evidence was so beyond overwhelming no defense attorney could be one hundred percent perfect even if you don't to look at this is it's one question i don't it's how you record of loads and loads of really working hard for this guy in every bit of evidence he could get in to show what a bad guy the victim was and how we knew it  so no i don't think the ineffective assistance of counsel claim can go anywhere there's actually no prejudice did you want to discuss an issue that was not brought up no everyone's ok with if i'm was able to talk about again evidence in the colors that mr gladstone or kiki were wearing there was nothing strategic about that it was very clear and came out during the state's case in chief that he's a latin  in the state pro trade him that way the defense had the opportunity to cross examine him the defense could have used those pictures to cross examine him and not have recalled him to the stand in their case in chief but having not done so there is a with the facts in this case and with greg's testimony that was not strategic on the behalf of defense counsel and really saying it was good no it was ineffective assistance of counsel they attempt to impeach him the intent to say oh you were wearing those color that color you must be in a gang and thank naturally says no and you know all that did was offer his credibility for the trial court who ends up then their case in chief and with the fact they give him the opportunity to give kids inconsistent evidence as to how this fight begins they give him the opportunity to give evidence that damages the defense of mutual back together that is in effect if this is counsel that is not bad trial strategy that's not you know making a mistake as a defense attorney certainly i'm the first person to admit that no defense attorney is perfect this isn't an example of imperfect defense attorneys making strategic calls or mistakes this is ineffective since assistance of counsel from the beginning of the trial when they're having sidebars on the record about what evidence is state's contention about premeditation i would point out this court to facts in the record first of all that mr she do would went outside because he was calling after nessie well and that's the best the judge evaluating the evidence and that believing what the defendant testified to and instead believing the other evidence in the case well then i'd like to turn to quickly and have a testifies that he hears kiki saying that's what we are on and looks up at each and my language when mr he walks up to them that's habitants of a man that's not running away and granted there's no knows i made this whole construct you don't necessarily credit everything a witness says or discredit everything a witness says sure agreed your honor but then i would like to  point you can the fact that you say that somebody conveniently left something out may well be in the court may well found that either it didn't happen or that he was unsure  i would point you to another fact it happens that came from the quality of family i believe angela crowder you know anthony cloud you know as you said stated that asher displayed the knife to them earlier that evening again premeditation who is displaying their premeditating murder who is displaying their murder weapon that they but they plan to use to kill someone in public or around witnesses earlier that evening it he's showing the knife before there was any yelling from the street by the deceased sure yes so this question then arises as justice laffin asked when does the premeditation afterward hurt because if you didn't know that the person was outside at that point you obviously wouldn't have at that point a reasoned premeditate response to that but having later found that he is outside in violation of the orders and calling to the person he's supposed to be leaving alone and having previously this late this weapon isn't it possible and isn't that really what the court has found here that the determination to but in the courts finding has to eat at the state satisfied every single element beyond a reasonable doubt and so possibility sure it's just as possible your honor that mr cheating you was provoked by that it's just as possible that's why he walked outside i think it's also possible that he thought his sister would be before but i don't think anybody believes ok i don't think the trial judge believe that they're just sort of a fundamental issue have here in terms of mutual combat initial aggressor premeditation all of that can come down to the way the court if the only way that the testimony that here's this guy who nobody likes was a threat to this family and who has swinging while in a while and then talks very specifically about the depth of the big ones and their location now this wasn't swinging wildly and that to me was the sort of lynchpin of his whole decision that he just didn't believe the defendant in this mutual comment sort of scenario because it was very directed the wounds were very direct as well and yes your honor may i agree with what you're identifying in the record that was a fact that the court definitely looked to prepare mr hugh to explain or ask the question when you say swinging wildly what do you mean by wildly intake mr heating in his direct examination step through step about how this fight happens and how there would be mo that deep if you're defending yourself if you are scared for your life if you were the person on the bottom as mr she was because he fell on top and then it is certainly possible that there's going to be deep stab wounds there are certainly possible swinging man may be sitting in a different situation and that's in the problem the problem you have though is that the person trying to sell that factual theory this is same person who said he went out because a sister people horn in the same person who fled the scene ok as far as the simon case i would just quickly distinguish that in that case the defendant pulls five a guy and gets out of the car walks up to the victim who has both of his hands up in the air points to the guy and size i'm he says something to him as he's approaching with a gun shoots the victim once or twice testimonies unclear but there's four witnesses in that case that it served us shoots the victim once or twice victim falls to the ground defendant stands above him and shoots five six seven eight times i think was the testimony in that case i would actually it's not similar in factually it is different and i don't think simon mandates that this court